On October 8, 2015, the Arkansas Supreme Court delivered an opinion reversing the conviction and dismissing all charges against a woman who on multiple occasions throughout her pregnancy subjected her child to codeine, amphetamine, and/or methamphetamine. Unfortunately, this was the only decision the Court could come to. Arkansas law makes it a crime "for any person to administer or cause to be ingested, inhaled, or otherwise introduced into the human body of another person a controlled substance" unless prescribed by a physician for a legitimate medical purpose (Ark. Code Ann. 5-13-210). The decisive factor in this case is that under Arkansas law, the definition of person includes unborn children only in terms of a homicide (Ark. Code Ann. 5-1-102(13)(B)(i)(a)). Tempting as it may be to call this case one regarding the rights of the unborn, that is too easy. This case is a case regarding the rights of the born.
The case is State of Arkansas v. Arms, 2015 Ark. 364 (2015). The Court found that the evidence only suggested that the Defendant could have delivered a drug to her child by "otherwise introduc[ing] it" since there was no evidence that the child ingested or inhaled it. It also found no evidence that the Defendant otherwise introduced drugs to her child after the baby was born. While there was a narrow window of time between birth and the severing of the umbilical cord in which the Defendant could have still been transferring drugs to her now born child, there was no evidence to support that speculation. On these grounds alone, the Court had no choice but to reverse the conviction and dismiss the charges.
However, as courts sometimes do (in spite of their own policy against making decisions on appeal that litigants have not raised), the Arkansas Supreme Court went too far and provided additional rationale for its decision beyond the scope of the appeal - an issue soundly addressed in Justice Wood's concurring opinion. The majority opinion ruled that even if the law were changed to include the unborn, who will inevitably suffer harm after birth as a result of the Defendant's drug use before birth, the law that criminalizes introducing drugs into the body of another "cannot be construed to include such a passive process" as the biochemical exchange between a pregnant woman and her unborn child.
That is an incredibly dangerous piece of legal reasoning with far reaching moral implications. The idea is that causing someone to ingest or inhale is an active process that the statute specifically calls out, so the general phrase "otherwise introduce" must also be an active process. At what point does ingesting, inhaling, or as in this case injecting anything become a passive process? The point at which the ingested chemicals biologically pass from mother to child by a natural process? Surely we know by now that much of what the mother actively ingests, inhales, or injects will naturally pass to the unborn child, or are we arguing that this mother's right to actively break the law trumps this child's right to be born without a drug addiction? Fortunately, the majority opinion does put a face on this victimized baby, who "did not cry, even after being stimulated. He was flaccid and limp and had a facial droop on one side of his face...suffering withdrawal from methamphetamine use."
The state of the law as a result of this case is absurd. This is not a matter of the rights of the unborn; it is a matter of the rights of the born. Not only can we actively kill the unborn, we can actively harm them in utero such that they suffer after birth. In other words, we value life so little that not only can we arbitrarily terminate it before birth, we can addict it to dangerous and deleterious chemicals before birth that it will suffer through after birth.
This blog is about faith meeting law. Faith is belief in action (see Hebrews 11), so two questions remain: what do we believe? and what should we do? Proverbs 31:8-9 say, "open your mouth for the mute, for the rights of all who are destitute. Open your mouth, judge righteously, defend the rights of the poor and needy." In his rebuke against unjust judgments, Asaph said in Psalm 82:3-4 that his readers should "give justice to the weak and the fatherless; maintain the right of the afflicted and the destitute. Rescue the weak and the needy; deliver them from the hand of the wicked." In His plea for Israel to repent after having said "I've had enough," God said through Isaiah in Isaiah 1:17, "learn to do good; seek justice, correct oppression, bring justice to the fatherless, plead the widow's cause. Infants certainly fall within the scope of these verses. The facts are simple - defenseless, destitute, oppressed, poor, needy, afflicted, weak infants can be born addicted to a controlled substance and the State, which speaks first and foremost by the laws it passes and enforces, says that this state of affairs is okay. Yet these infants who cannot speak cannot possibly be said to desire their addictions. We must be their voice, but how?
Chief Justice Brill noted in his concurring opinion that the Arkansas General Assembly considered this issue in House Bill 1376 of 2015. The obvious course of action is to revisit that piece of legislation as soon as possible. Furthermore, we need to be very cautious of legislation regarding the legalization of recreational drug use. Even if those drugs do not readily pass from mother to unborn child, the potential for the gateway effect to force more people into harder drug use while pregnant only raises the specter of more children like this to be born with chemical dependencies. Ask your representatives and senators to protect the born.
Slow down. Take a deep breath. These are the words I’ve repeated to myself over and over as every news app on my phone alerted me one after the other that the United States Supreme Court ruled that same sex marriage bans across the country are unconstitutional and that all states must recognize same sex marriages performed in other states. As I read the opinions in Obergefell v. Hodges, 576 U.S. _____ (2015), I ultimately couldn’t help but ask myself what this means for me as a pastor and lawyer. What does this mean for the church? What does this mean for believers?
The decision is summed up in one paragraph:
“Just as a couple vows to support each other, so does society pledge to support the couple, offering symbolic recognition and material benefits to protect and nourish the union. Indeed, while the States are in general free to vary the benefits they confer on all married couples, they have throughout our history made marriage the basis for an expanding list of governmental rights, benefits, and responsibilities. These aspects of marital status include: taxation; inheritance and property rights; rules of intestate succession; spousal privilege in the law of evidence; hospital access; medical decisionmaking authority; adoption rights; the rights and benefits of survivors; birth and death certificates; professional ethics rules; campaign finance restrictions; workers’ compensation benefits; health insurance; and child custody, support, and visitation rules. Valid marriage under state law is also a significant status for over a thousand provisions of federal law. The States have contributed to the fundamental character of the marriage right by placing that institution at the center of so many facets of the legal and social order.” (Internal citations omitted.)
In other words, since the state and federal governments have exalted marriage as beneficial as a matter of public policy, the Supreme Court has decided that it is public policy – not God – that defines marriage. Instead of values determining policy, policies now set values. How backwards? In any case, the decision comes down to the dollar to a large degree. Heterosexual couples get certain financial benefits as a result of being married – tax benefits, inheritance and property rights, survivor benefits, relief from certain campaign finance restrictions, workers’ compensation, insurance, child support – all of which are financial considerations. Other marital benefits are more situational – the right to tell one person something in confidence and keep it that way despite a Court order to testify as to what was said (spousal privilege), the right for one person to be with you in the hospital and by default make healthcare decisions for you if you are incapacitated, the right to adopt a child, the right to have the loved one of your choice on your death certificate, and so forth. The primary issue in this case revolved around whether same-sex couples should receive these same benefits as both a matter of personal choice protected under the due process clause and as a matter of equal protection of the law.
To put the debate on same-sex marriage to an end, the Court also addressed the question as to whether a state could refuse to acknowledge a marriage performed in another state. The Court held the states cannot. The ultimate summary is this – same-sex marriage is now legal in the United States and the only real way to change that is to amend the Constitution.
There are three primary things Christians should be concerned about as a result of this opinion. We should first be concerned with the regard held for the Word of God. Justice Kennedy quoted Confucius, not Scripture. This opinion obviously discounts and disregards God’s Word. Secondly, we should be concerned that although up until now people behaved contrary to the morality of God’s Word all the time, the conduct is now celebrated and solemnized as a matter of Constitutional law. Finally, we should be concerned for the spiritual health of orphans because this ruling explicitly references the ability of same-sex couples to adopt in its wake.
So how should we respond?
1. Learn why Scripture is the inerrant, infallible, and ultimate authority as the Word of God. If someone asked you why you thought same-sex marriage was wrong and you told them, “because the Bible says it is”, would you be able to articulate why the Bible is the ultimate moral authority? If not, check back later and I’ll have another blog post up to help you with that.
2. Hold fast to a biblical view of marriage. I am not saying that this opinion amounts to persecution of the church. However, holding to a biblical view of marriage while a majority of the country celebrates this opinion will likely result in some insult and persecution of individual believers. Prove yourself zealous for what is right and be prepared to defend the hope that you have. Hold fast, be blessed, and be ready to defend the truth of Scripture with gentleness and reverence. (1 Pt. 3:14-16).
3. Examine and adjust your own marriage to match the biblical definition of Scripture. We can be pretty quick to quote 1 Corinthians 6:9-10 when defending the biblical view of marriage. But let’s not forget that extra-marital sex, pornography, and adultery are other sexual sins listed as conduct unbecoming an heir of God’s kingdom. Husbands, let’s not forget that we are told to love our wives sacrificially and lead our families. Wives, let’s not forget that Scripture commands you to be subject to your husband. (Eph. 5:22-33). Let’s not forget that we are commanded to keep the marriage bed pure and undefiled. (Heb. 13:4) If we’re going to hold so passionately to a biblical view of marriage (as we should), let’s actually live it out.
4. Foster and/or adopt a child. I don’t want to convey that children raised by same-sex couples will not be loved and/or physically and emotionally cared for. However, it is safe to say that children raised by same-sex couples will be raised in an environment where regard for the Word of God is confused at best. Notwithstanding this ruling, there has never been an excuse for there to be a single child in foster care – both because the circumstances which put them there are inexcusable and because the church’s mediocre response to the needs of the orphan falls short of biblical exhortation. However, in light of the fact that this ruling was to some degree formulated so that same-sex couples could adopt, evangelical Christians should flock to the nearest human services office or adoption agency and raise those children in an environment where the Word of God is revered and cherished.
5. Bridle your tongue. Holding fast to a biblical view of marriage does not mean taking to Facebook and Twitter with scathing political commentary. I intentionally avoided social media for a while after the opinion was released, and the first post I saw after my brief social media fast claimed that this case marks the beginning of the Christian holocaust. Others say their renouncing their U.S. citizenship. Panic, anger, and alarmism reflect fear and trouble. They do not reflect the hope we have. They do not defend that hope gently or reverently.
6. Cheer up! I’ve had to examine myself as a result of my feelings after this opinion was announced. Who or what do I worship? Do I worship the biblical view of marriage? Do I worship the government of the land I was born in because it used to hold to a biblical view of marriage? Or do I worship a living God? Russell Moore made a great point: the Supreme Court can’t put Jesus back in the grave. He’s still alive! He’s still coming back for His church one day! He still offers to fill the gap between our imperfection and God’s perfection! He still saves! He still loves me! If we can’t rejoice and hope in these facts today because “five lawyers have… enacted their own vision of marriage as a matter of constitutional law” (see Chief Justice Roberts’ dissent), then perhaps we don’t truly grasp the all-surpassing greatness of these facts.
7. Don’t act defeated! You are not defeated! Jesus has overcome the world! (Jn. 16:33). While this opinion runs contrary to Scripture, it along with the Constitution that it purportedly defends will one day perish. But the Word of God stands forever! (Ps. 33:11, Is. 40:8, 1 Pt. 1:24-25). A defeated attitude is inconsistent with the ultimate victory of Christ and our resultant hope in Him.
8. Refocus your political energy towards religious freedom. Pragmatically, Christians cannot afford to stand defeated today. It is the height of naivety to believe that the more extremist proponents of the same-sex agenda are satisfied. They will continue their efforts to force Bible-believing business owners to violate their own conscience. They will continue their efforts to have religious speech manifest in the proclamation of the Word of God categorically redefined as “hate-speech” and criminalized in much the same way they have categorically redefined marriage as whatever the individual decides it is.
Justice Kennedy at least tried to placate those who disagree with him on religious grounds. He stated, “Many who deem same-sex marriage to be wrong reach that conclusion based on decent and honorable religious or philosophical premises, and neither they nor their beliefs are disparaged here.” Later, he wrote:
“It must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned. The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered. The same is true of those who oppose same-sex marriage for other reasons. In turn, those who believe allowing same-sex marriage is proper or indeed essential, whether as a matter of religious conviction or secular belief, may engage those who disagree with their view in an open and searching debate. The Constitution, however, does not permit the State to bar same-sex couples from marriage on the same terms as accorded to couples of the opposite sex.”
These are sentences that Bible-believing churches must cling to for dear life going forward. Churches should count this as a promise from the Supreme Court and vigorously hold it to that promise. This opinion means that states must recognize same-sex marriages to the same degree that they recognize heterosexual marriages. It does not mean that you or I have to recognize same-sex marriage as marriage, or that the church must recognize or perform same-sex marriage.
9. Pray. Pray for those in authority that the church “may lead a tranquil and quiet life in all godliness and dignity.” (1 Timothy 2:2). Should we be concerned about what this means for the sanctity of what God calls marriage? You bet. Pray for God’s kingdom to come and His will to be done in America and in marriage. Should we be concerned about what this means for children, especially orphans? Absolutely. Pray for orphans to be adopted into godly homes.
Life goes on. Remain in the Word and dedicated to the truth. Follow Christ. Remember and rejoice in the fact that Jesus still saves.
In recent headlines, states across the country are passing state versions of the federal Religious Freedom Restoration Act. In my home state, the Arkansas General Assembly is getting slammed for passing similar legislation, and our governor is under immense pressure to veto the bill. The primary opposition is coming from the GLTB community. I support HB 1228 because it protects religious freedom. However, since it fails to strike a proper balance between protecting Christians' fundamental need to avoid being an accessory to sin and otherwise treating all people as made in the image of God and therefore worthy of love, acceptance, and respect, I do not believe Christians should let this law be the standard by which they treat others. Scripture must set that standard.
You can read HB 1228 here. In a nutshell, it protects individuals, businesses, and religious institutions in their right to practice or observe their religion, including "the ability to act or refuse to act in a manner substantially motivated by a person's sincerely held religious beliefs" from any state action. The bill defines state action as "the implementation or application of any law, including without limitation state and local laws, ordinances, rules, regulations, and policies, whether statutory or otherwise, or other action by the state or any political subdivision thereof and any local government, municipality, instrumentality, or public official authorized by law in this state." In other words, no one in government may pass a law or rule which would require a religious person to act or refuse to act in violation of his or her sincerely held religious belief. The only exception was set forth by the U.S. Supreme Court in Wisconsin v. Yoder, 406 U.S. 205 (1972), in that the government can prohibit such action if that prohibition is essential to further a compelling governmental interest and is the least restrictive means of furthering that governmental interest.
The chief gripe against this proposed statute is that it would allow Christian business owners to refuse to sell goods or services to anyone who is a practicing homosexual because it violates their sincerely held religious beliefs. Conservative evangelicals have long held that Scripture's teachings on homosexuality clearly place the practice as contrary to the will, holiness, and perfection of God, and I hold to that position as well. However, I do not believe the Bible condones refusing to do business with those who do not follow God's requirements in most circumstances (emphasis on the word most).
In short, Christians must treat people as they would want to be treated while refusing to be an accessory to sin. In some situations, the determination of how the Christian should act is simple. Christian grocery store owners and managers should not refuse to sell groceries to a practicing homosexual, even though this bill would allow it. Doing so is by no means making the store owner or manager an accessory to sin. Likewise, Christian restaurant owners should not refuse to sell their food to a practicing homosexual, nor should Christian barbers and hair stylists refuse to cut a practicing homosexual's hair. On the other side of that coin, however, Christian bakers must absolutely have the right to refuse to bake a cake for a homosexual wedding because doing so would make that baker an accessory to sin. Christian wedding photographers should likewise have the right to refuse their services to a same-sex couple. Christian churches should have the freedom to only perform wedding rituals for couples that meet the definition of marriage provided by Scripture.
Although this standard is painted as a bright red line, that line is not necessarily as clear as one might think. Should Christian lawyers refuse to draft a will that leaves the property of one person in a same-sex couple to the other? Should Christian accountants refuse to prepare and file a joint tax return for a same-sex couple? Should a Christian landlord decline to lease a house or apartment to a same-sex couple? These are the questions that Christian ethicists, theologians, and pastors must debate and the answer to which must ultimately be left to the individual conscience of the Christian who is faced with the situation.
In each instance, there will be varying opinions. Some Christian lawyers may feel that writing a will for a same-sex couple looks too much like a family affair and conclude that he or she would be an accessory to sin by writing it. Christian accountants may feel similarly about preparing and filing a joint tax return for a same-sex couple. Others may conclude that whether two people of the same gender are having sex has little to do with what happens to their property when they die or the manner in which they file their taxes.
But in either case, it is the individual's conscience before a holy God that must make the final decision. Not the government. Not the church. The individual. If a person cannot stand confident in their decisions as pleasing to God or ashamed in their decisions as displeasing to God, that person cannot practice religion. It is from interference in these moral decisions that society at large must be protected. This is why I support HB 1228.
I follow Christ. I have a beautiful wife Megan and three wonderful children, Harrisen, Rebekah, and Carter. I am a candidate for a Ph.D. in ethics from Midwestern Baptist Theological Seminary, have an M.Div. from Liberty Baptist Theological Seminary and a JD from the University of Arkansas, am licensed to practice law in several state and federal courts, and live in Rogers, Arkansas. I write a blog and produce a podcast. And I do it all that others may know Christ.