Since the time of David Hume (1711-76), philosophers have been struggling with the question of whether “ought” can be inferred from “is.” Famously, Hume held that it “seems altogether inconceivable how this new relation [ought] can be a deduction of others [is] which are entirely different from it. For Hume, propositions of how the world is simply cannot entail statements of how it ought to be.
 But naturalists of all stripes, including Hume’s contemporary Jeremy Bentham (1748 -1832), have held that a sufficiently thick description of how things are does entail how they ought to be. Famously, Bentham’s Principle of Utility “approves or disapproves of every action whatsoever, according to the tendency which it appears to have to augment or diminish the happiness of the party whose interest is in question.”  Since the Principle of Utility supposedly does, in fact, govern human behavior, it is descriptively true that human beings ought to do that act which augments the happiness of those whose interest is in question. Likewise evolutionary ethical theory assumes licit a move from ‘is’ to ‘ought’. If human beings are instilled by the evolutionary process with a moral sense, then the fact of this sense does entail what they ought to do.
 In 1903, G.E. Moore (1873-1958) launched a classic argument against any kind of ethical naturalism. In his “open question argument” Moore points out that a statement like Bentham’s ‘pleasure is good’ cannot mean that pleasure is identical to good, for if that were so, then ‘pleasure is good’ would entail ‘pleasure is pleasure’. But clearly it remains an “open question” whether or not ‘pleasure is good’. Thus, anyone asserting that pleasure is good must be “saying something more” about pleasure than that it is pleasure, and this “more” points to a non-natural property of goodness. To say ‘x is good’ or ‘S ought to do y’ is to say something that is in principle irreducible to mere descriptions of natural, social and institutional facts. Accordingly, ‘ought’ and ‘is’ are of different orders.
 While philosophers since Moore’s time have been divided over the validity of the open question argument, there is no mistaking that the dominant tradition of twentieth century philosophy followed Hume in denying that ‘ought’ can be derived from ‘is’. Even if beneficent values are somehow evolutionarily loaded into human nature, the fact of these values still does not entail that one ought to act in accordance with them.
 On the issue of ‘is’ and ‘ought’, I agree with the classic refutation by James and Judith Thomson of John Searle’s famous 1964 paper, “How to Derive ‘Ought’ from ‘Is’.” While Searle labors to show how institutional facts can entail evaluative statements, the Thomsons demonstrate that ‘I (Jones) hereby promise to pay you (Smith)’ does not entail ‘Jones ought to pay Smith’ because there are cases where Jones ought not to keep his promise, and there are no further institutional facts that can entail each and every putative evaluative gap. I am convinced that ‘ought’ cannot be logically derived from ‘is’, and the attempt to do so begs the question.
 So why raise this old controversy in a discussion of the ELCA Draft Social Statement on Human Sexuality (DSSHS)? It is because the theological structure of DSSHS does assume that ‘ought’ can be derived from ‘is’. DSSHS supposes that descriptive statements about God’s incarnation in Christ and His justification of sinful human beings entail evaluative statements about how one ought to behave sexually. By attempting to ground sexual ethics in the Second Article, DSSHS not only is unorthodox, but incoherent. The document not only fails to hold together rhetorically, but it cannot do so logically. By a thick description of what God has done for us in Christ, we simply cannot derive how we ought to act as Christians. As paradoxical as this might sound, to claim that we can do so is to confuse law and gospel. The ‘ought’ of law cannot be derived from the ‘is’ of gospel, and this not so deriving is a necessary condition for Christian freedom. To suggest otherwise is to strike out in a way that Lutheran ethicists simply cannot go.
Reading DSSHS Critically
 Maybe it is unfair to read DSSHS closely and critically. After all, it is the work of 15 committee members from different walks of life, having different educational backgrounds, different theological convictions, and different views on the propriety of same-sex relationships. However, since the document purports to be important enough that the entire ELCA study it, I shall take it with the seriousness it invites.
 DSSHS starts promisingly enough, quoting Jesus’ summary of the law: 1) Love God above all things, and 2) love the other person as oneself (Matt. 22:36-40). But from here things disintegrate rather quickly. As Lutherans have always confessed, no one can actually do what the law commands, i.e., love God above all things and love the neighbor as oneself. While this fundamental material content of the law is binding on all human beings, nobody can accomplish it, and thus all people have a fundamental deficiency before the law.
 Unfortunately, DSSHS seeks to obscure the full realization of this deficiency. It asks, “What does it mean for us as sexual creatures to love our neighbors as ourselves and thus fulfill God’s law of love in this time and society”(13-15)? Unfortunately, the game has been lost from the outset because this question is the wrong one. A person simply cannot “fulfill God’s law of love.” To suggest it is possible mixes law and gospel.
 This confusion of law and gospel is further exacerbated when, a few lines later, the ELCA is identified as “a community of moral deliberation.” The use of this definition from a 1991 ELCA social statement is unfortunate because it misunderstands the meaning of ‘church’. Why should one expect members of the ELCA to have special ethical/moral insight or special ethical/moral tools of reflection? The church is, as Luther says in the Smalcald Articles, those “little sheep who hear the voice of their shepherd.” Clearly, those hearing this voice are not concerned primarily with the development of communal acumen in ethical and moral reflection, but rather with salvation. The church is a community gathered about a salvific concern (gospel), not an ethical one (law).
 Another confusion emerges when DSSHS states that it wants to “speak in ways that can address both religious and secular discussions” (35-6). Accordingly, one would expect DSSHS to identify something universal in Christian and secular experience. Lutheran ethics has traditionally been able to accomplish this with its two kingdoms approach: God deals with His creation with two hands. With the gospel of His right hand, human beings live in the realm of grace and faith. However, with His left hand, humans dwell in the kingdom of law and reason. The genius of Lutheran ethics has always been that because the foundation of ethical reasoning is not grounded in the particularity of Christian soteriology, ethical reflection from a Lutheran perspective retains a universal character. There is a demanding divine left hand, not just a grace-filled right hand.
 But any hope that DSSHS proceeds in this time-honored fashion is immediately crushed by this statement: “[This document] contains important introductory material designed to explain how Lutherans approach ethics in the light of God’s incarnation and our hope in God who justifies us in Christ” (45-7). With this statement, the foundation for a Lutheran contribution to a secular ethical discussion is lost. How might one find something in these two disparate discussions that is common when the putative foundation for these discussions is the reality of incarnation and justification only granted by one of the conversation partners? This profound incoherency is never addressed in DSSHS.
 Another theological problem occurs when DSSHS makes this startling claim: “As Lutherans we understand ourselves . . . as simultaneously righteous (saved by God’s grace alone) and sinful (convicted by the law)” (165-66). While one might argue on the basis of the “happy exchange” between Christ and the sinner, that ‘righteousness’ just is ‘being saved by God’s grace’, any supposed claim of identity between being sinful and being convicted by the law is wrongheaded. Clearly, being sinful and being convicted by the law are logically independent notions. One is sinful from birth even if one has never been convicted by the law. To confuse the two is to mistake the reality of not conforming to the law with the apprehension of not so conforming.
 DSSHS’s attempt to use the category of Christian freedom as it flows from justification also becomes problematic. How is it precisely that “freedom from the crushing burden of our unworthiness before the law” engenders “responsibility and humility in service to the neighbor (200)? While the document rightly says that we serve others because of God’s “promises, compassion and mercy” (213), it does not show – – and indeed it cannot show – – how God’s promises, compassion and mercy fill in the contour of what we ought to do. The problem is logical: We cannot derive that we ought to be compassionate because God is compassionate, though we can conclude that we are in fact compassionate because God’s Word has awakened faith within us. DSSHS purports, however, to be an ethical document. Accordingly, it deals with what human beings ought to do, specifically, with what is sexually licit and what illicit.
 DSSHS seems to make statements that are not intended by the drafters. Surely, the committee did not mean to suggest the universal claim that “Lutheran sexual ethics cannot suggest that sexual longing or sexual expression is sinful intrinsically” (275-76). But, of course we do routinely presuppose that there are classes of sexual longings or expressions that are not intended by God for human beings to have and do. For instance, is not a sexual longing or expression toward a child intrinsically sinful? Is it not also the case with a murderous heart? Just because something may be “natural” for A to experience does not mean that God intends it. We must distinguish God’s natural law that A instance a set of dispositions from the natural disposition A has not to instance them. The sad fact is that humans now are not as they ought to be. Clearly, if, as Luther says, a human being “sins against God whether he eats or drinks,” then there is a large class of sexual longings and expressions that are intrinsically sinful.
 As has previously been discussed, DSSHS states that “a Lutheran sexual ethic looks to the death and resurrection of Christ as the source for the values that guide it (315-16).” But the question is how does the death and resurrection of Christ guide sexual value formation? What is the specific connection?
 Lamentably, no answer is provided. One can say such things as that God was so merciful that He, in Christ, went to His death on the Cross. But precisely what does this imply for sexual human beings? Are we to conclude that since Christ did not condemn (or judge) us, we ought not condemn (or judge) our brother or sister? While this is right, it tells only half the story. In reality, we are both condemned by God for our sin, and forgiven in Christ for that same sin. Lutheran ethics cannot leave out half of the story. It is because we are already condemned and lost before God that God became incarnate and justified us. Lutheran sexual ethics must not forget the reality of God’s primordial intentionality for his creation, and the deficiency of His creation in actualizing that intentionality. Living out our freedom on account of Christ does not entail a change in the identity conditions for “being lost.”
 Finally, for a church defining itself as “a community of moral discernment,” the section entitled “Scripture and Moral Discernment” is a profound disappointment, for we learn very little here about how Scripture should be used to discern what God would have us do sexually. DSSHS claims that “Scripture teaches that God’s will for humankind and creation can be comprehended only through the foolishness of the cross and resurrection of Jesus Christ (405-07).” While this is, of course, true of God’s merciful will, Lutheran ethics simply cannot deny that God retains an original will for humans that they “be perfect . . . as your heavenly Father is perfect (Matt. 5:48).”
 The trouble is very deep. It is as if the drafters of DSSHS had forgotten the ancient Marcionist heresy of denying the validity of the Old Testament and its teachings in favor of single-minded concentration on the merciful salvific action of the saving God. For Marcion, Christ is sent by the fully good God to rescue creation from a situation produced by a righteous, but jealous, creator God who has made rather a mess of things. Accordingly, the old laws of the Old Testament have passed away and a new era has dawned. By steadfastly refusing to go to the OT and its law for determining the intentionality of God for human sexual being, DSSHS flirts with the heresy of Marcionism.
 In summary, the fundamental problem of DSSHS is that it forgets that God deals with His creation with two hands: on the left hand is law and reason, and on the right hand is gospel and faith. Lutheran theology teaches that it is one God who deals with His creation in these two ways. DSSHS consistently errs on the side of identifying God only with his right hand. But God is ambidextrous. To work out a Lutheran social ethics on sexuality demands that both hands of God be equally considered. There is a divinely-intentioned order that must be implemented along with a divinely-intentioned mercy that is freely given when that intentioned and just order is not implemented. An ethics without God’s left hand cannot be a Lutheran sexual ethics. Accordingly, DSSHS, though written by Lutherans, is not a Lutheran document.
DSSHS and the Divine “As If”
 As others have pointed out, the term ‘Trinity’ occurs but once in the document, and there the three persons are not named. This is indicative of perhaps a deeper presupposition in the document: In discussing sin and law the document proceeds merely “as if” God were to exist apart from human awareness, perception, conception and language, and merely “as if” God had a definite set of attitudes towards the world. I say this “as if” pointedly because there is ample textual evidence to suggest committee members actually do not agree that God has a primal intentionality towards His creation. Instead of viewing God as a concrete divine being having particular intentions towards His creation (e.g., it is His Will that human beings do x under conditions y), God is understood as somehow having an abstract general nature that human beings must “fill in.” The result of this “filling in” is that God’s “intentionality” towards x is greatly influenced by the previous commitments of the drafters towards x, commitments not presupposing the divine at all.
 As previously indicated, the nature of God and his relationship to His creation is understood in DSSHS on the basis of His merciful, incarnational sojourn and justificatory activity. But given this general nature of the divine, what specific intentions would and could this God have for His people? Surely He would bring life out of death, make new the old, and do the unexpected (like rising from the dead). Since He incarnationally dwells with us in our humanness, he is with us in our weakness and weak-willedness. Accordingly, He is always alongside us in our sexual choices and foibles. Because God loves us even in our weakness, we may love others in their weakness. But outside of general platitudes like these, what more can be specifically concluded about how humans ought to behave sexually?
 Here the task becomes more difficult. While love and mercy are very good things, and while God’s gift of them to us does indeed suggest we should be honest, sincere, and non-jealous in our relationships, the fact of divine love and mercy is not capable itself of providing a foundation for the institution of marriage. On the basis of divine love and mercy, why prefer married love to lesbian love? What reasons are there favoring being loving and merciful within the context of heterosexual married love over homosexual, unmarried love? Is heterosexual love more facilely derivable from the incarnation and justification than homosexual love? If so, how is it?
 The problem is that DSSHS fails to avail itself of the traditional Lutheran resources of natural law and orders of creation. By looking only at the incarnation for clues to God’s intention, DSSHS ignores what the Old Testament (and much of the New Testament) says about God’s distinctive intentionality for human life – – including human sexual life. Clearly, DSSHS does not suppose that God has a general revelation for all human beings apart from the Christ event, and that the Bible has much to say about the specifics of God’s intentionality. In fact, this fundamental question is not even asked in the document: Is homoerotic behavior in itself sinful? Is such behavior consistent with the Will of God, or does it run counter to His will? While it would seem to many Christians that one of these two alternatives must obtain, DSSHS actually allows a third option: It is neither consistent with nor inconsistent with that Will, and perhaps, to think it is, is itself profoundly wrongheaded. But to assume this is to assume that God is not the kind of being that has a definite will at all. Accordingly, the intentionality of God, while it might be an interesting theological construct, is not itself a real event or state.
DSSHS and Antinomianism
 Classically, ‘antinomianism’ applies to any theological position that downgrades the authority or integrity of the law. If one were to say, like Luther’s contemporary Johann Agricola, that the law needs not to be proclaimed among Christians, then one clearly is flirting with antinomianism. The question is this: Is DSSHS antinomian?
 To answer this question, one must first get an operational definition of ‘law’. I like the following: x is a law if and only if x is promulgated by an authority, x is binding upon an appropriate class, and x is in principle enforceable. Lutheran thinking has classically started with the giving of God’s law to creation. God is an authority that has a clear intent with respect to His creation, and this intent is accordingly binding upon it. Furthermore, this law is enforceable by God: violators – – all of us – – are worthy of ultimate punishment. For Luther and the classical Lutheran tradition, the ‘oughtness’ of things is grounded upon a transcendent ought-intentionality. Not only is creation bound by the ought, God has a capacity to enforce the oughtness He loads into creation.
 Classical Lutheran theology does not derive an ‘ought’ from an ‘is’. It realizes that the ‘ought’ of law can only be grounded in the transcendent ‘ought-intentionality’ of God. Sin interferes, and what ought to be, is not. The Fall is the nonconformity of ‘is’ to ‘ought’. All of creation is wayward. God’s natural law is not followed. All have fallen short of the glory of God.
 Redemption in classical Christian theology is God’s arrival in His incarnation to justify, e.g., to make right, the nonconformity of creation’s ‘is’ to God’s ‘ought’. Justification, on account of Christ, occurs when God judges His wayward creation that is not what it ought to be, to be nonetheless acceptable to Him, to the One who justly must judge it as unacceptable. For Lutherans, the “happy exchange” between Christ and the sinner operates so that Christ’s gifts of conformity to the ought are given to human beings, and human deficiency in the face of this ought is given to Christ. The result is that human beings live and Christ dies in accordance with divine justice.
 The profound problem with DSSHS turns out to be the ancient problem of “what has God said?” The notion of an external law claiming that human beings ought to behave in a particular way seems fundamentally out of touch with our times. While human beings have never liked oughts, our time has a special disdain for them. In vast portions of western popular culture, normative ethics simply does not play. People can make no sense out of “absolute” claims that humans ought to be different than they are. The very notion of an objective reality that human beings must conform to is anathema to us. It is, of course, the triumph of Nietzsche. The medieval transcendentals of truth, goodness, and beauty have been unmasked and seen to be mere projections of the human will-to-power.
 Lutheran theology in the last 125 years has been strongly influenced by Nietzsche’s critique. Accordingly, there is little hope that an ELCA committee on sexuality can move beyond the dominance of the subject and return to the object, to a way of thinking that allows again for the possibility of real oughts. To return to the ought, to an honest appraisal of how God intends things to be, means that some trajectories of human action must be rejected. If man and woman ought to remain celibate outside of marriage, then that is what they ought to do, no matter how difficult that may be, and no matter how much one might not like it. That they won’t so remain is addressed by the reality of incarnation and justification. This is how it works; this is how it has always worked. But, as evidenced by DSSHS, this is no longer how it works – – at least within the ELCA institution of social statement-making .
David Hume, A Treatise of Human Nature, ed. L.A. Selby-Bigge (Oxford: Clarendon Press 1968), 469.
Jeremy Bentham, An Introduction to the Principles of Morals and Legislation, Chapter 1.
G. E. Moore, Principia Ethica (Cambridge: Cambridge University Press, 1971), 6ff.
See “How not to Derive ‘Ought’ from ‘Is’, The Philosophical Review 72 (October 1964). For Searle’s article, see The Philosophical Review 73:43-58. The matter is more complicated than how I have explained it in body of this article, resting basically on the logical status of a critical ceteris paribus (all things being equal) clause. Searle claims that, in the example of Jones and Smith, the “ought” derives from the “is” all things being equal. But what are these things? The Thomsons demonstrate that the “is” is derived only when the ceteris paribus clause is given an evaluative interpretation. But if this is so, then we have an evaluative statement that has not been derived from a descriptive one, and moreover, cannot be so derived.
Wengert & Kolb, The Book of Concord (Minneapolis: Fortress Press 2000), 324-25.
WA 18, 768:23: “In Deum peccat impius sive edat, sive bibat.”