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.
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.
It is difficult to argue with the notion that the system of justice in America has its problems. Yes, our jails are substantially overcrowded and underfunded. Yes, we have developed a structure of criminal justice in which incarceration is the default regardless of the circumstances and non-incarcerative alternatives (although this is slowly changing). Benjamin Corey points this out in a February 4, 2014 blog post on the Sojourners blog and emphatically argues that our system of justice is not working because of what he calls a poor theology of the cross. You can read his post by clicking here.
I agree that our system of justice has serious problems, but I need no empirical evidence to prove this fact. Proverbs has a great deal to say about justice. “Evil men do not understand justice, but those who seek the LORD understand it completely.” Proverbs 28:5. I wonder how many of our judges would claim to be more devoted to Christ than to anything else in their lives. If I had to venture a guess, I would bet that number is extremely low. “Many seek the face of a ruler, but it is from the LORD that a man gets justice.” Proverbs 29:26. We constantly go to court seeking justice from a secular judge, but Scripture tells us that we will only get justice from God. Why should it surprise us when justice is not done in a court established by the secular world? “A worthless witness mocks at justice, and the mouth of the wicked devours iniquity.” Proverbs 19:28. We have laws passed by legislatures that make it a criminal (and incarcerative) offense to lie on the witness stand, but case law that suggests when a trial court judge makes a decision based on testimony, the appellate courts give deference to the trial judge’s ability to ascertain the credibility of the witness. When those perjury laws are rarely enforced and lying on the witness stand is simply a matter of appellate review that assumes witnesses lie, why should we expect justice from our justice system?
I have plenty of empirical evidence as well. When I was a trial lawyer, I had plenty of well-reasoned motions or objections denied or overruled with seemingly little discussion, debate, or consideration. On the other hand, I’ve had clients who won cases that shouldn’t have. One thief I represented actually paid less in fines than the value of the merchandise that had been stolen and sold. The thief profited from criminal activity despite the fact that this person was caught. I’ve had clients who were punished less than other clients who had committed substantially greater offenses, in my mind due in part to variances in my relationship with different prosecutors, the prosecutor’s or judge’s feelings or policies about a particular offense, or even the prosecutor’s or judge’s mood the day that we began plea negotiations. However, considering Scripture’s description of secular justice, why should any of that surprise me?
What is most objectionable about Mr. Corey’s article is his analysis of how our system of justice became what it is today. Despite Scripture’s clear description of secular justice, Corey ascribes the fallacies of American justice to the church. “We got here because of poor theology,” he says. He argues that the church has been so influential in American jurisprudential thought and public policy that our overcrowded prisons and broken justice system can only be attributed to the church, not the fallen world. His culprit? The penal substitutionary theology of atonement.
Let’s start by discussing the propriety of the penal substitution theology of atonement. In essence, Corey accurately describes the element of substitutionary atonement. “All have sinned and fallen short of the glory of God.” Rom. 3:23. “The wages of sin is death.” Rom. 6:23a. While we as a human race were ungodly and sinful, Christ died for us and in our place. Rom. 5:6-9.
Corey objects to substitutionary atonement because “the cross is explained exclusively in legal terms.” Inasmuch as I cling to Scripture to understand the problems in our system of justice, I cling to Scripture to understand the ins and outs of Christ’s atoning sacrifice for us. In doing so, I cannot understand why we would want to explain the cross any other way when Scripture itself explains the cross in legal terms.
One of the foundational soteriological passages in Scripture is Romans 3:23-28. It says:
“For all have sinned and fall short of the glory of God, and are justified by his grace as a gift, through the redemption that is in Christ Jesus, whom God put forward as a propitiation by his blood, to be received by faith. This was to show God’s righteousness, because in his divine forbearance he had passed over former sins. It was to show his righteousness at the present time, so that he might be just and the justifier of the one who has faith in Jesus.
Then what becomes of our boasting? It is excluded. By what kind of law? By a law of works? No, but by the law of faith. For we hold that one is justified by faith apart from the works of the law.” Emphasis supplied.
Look at all of the legal terms in this passage about salvation: sin, justification, redemption, propitiation, forbearance, law, holding. The Greek word for sin is ἁμαρτάνω (hamartano), a verb which means “to violate a divine law.” In the legal world, when a person violates a law, it is called a criminal offense. The Greek word for justified is δικαιόω (dikaioo), a verb which means to be or become judicially vindicated as having complied with the requirements of the law of God. Elsewhere in Scripture, this same word is contextually translated “acquitted” (see 1 Cor. 4:4), which in the legal world is the word we use to describe the action of a judge or jury declaring a person not guilty of a criminal offense. The Greek word for redemption is ἀπολύτρωσις (apolytrosis), which is a noun meaning the act of liberating someone or something, especially one that required payment. In the legal world, the word redemption is also a noun, meaning the act of redeeming, buying back property by paying off a loan, interest and any costs of foreclosure. The Greek word for propitiation is ἱλαστήριον (hilasterion) which is a means of satisfying God’s wrath. Similarly, satisfaction in legal parlance is the discharge of an obligation paid. Since the wages of sin is death, propitiation is a satisfaction of those wages; the debt has been paid. I could go on, but I think you get the point. These words clearly describe the death of Christ in legal terms.
Corey’s analysis of penal substitutionary atonement fails because it takes place in a vacuum apart from the rest of Scripture. His analysis portrays God as a blood-thirsty judge who engaged in brutal domestic violence by beating and killing His own son for us criminals. We are not just criminal before the death of Christ, we are dead in our trespasses and sins. (Col. 2:13). We are alienated and hostile, at war with God. (Col. 1:21). God is not blood-thirsty – He is both loving and just. “For God so loved the world that he gave his only Son, that whoever believes in him should not perish but have eternal life.” (Jn. 3:16). Wayne Grudem notes that “the justice of God also required that God find a way that the penalty due to us for our sins would be paid (for he could not accept us into fellowship with himself unless the penalty was paid.) Paul explains that this was why God sent Christ to be a ‘propitiation.’” (Wayne Grudem, Systematic Theology: An Introduction to Biblical Doctrine, p. 569). In other words, if God’s law mandates that “the wages of sin is death” like Corey says, then God is not just if death is not given in exchange for sin. In God’s incorruptible justice, the mortal obligation we owed for our sin was paid and satisfied by Christ, who “for our sake he made him to be sin who knew no sin, so that in him we might become the righteousness of God.” (2 Cor. 5:21).
His analysis further falls short by leaving out one of the most important legal terms that Scripture uses to describe the atonement: reconciliation. Reconciliation is as much a part of penal substitutionary atonement as propitiation and redemption are. The above verse about God making Christ (who knew no sin) into sin itself is all placed in the context of reconciliation.
“Therefore, if anyone is in Christ, he is a new creation. The old has passed away; behold the new has come. All this is from God, who through Christ reconciled us to himself and gave us the ministry of reconciliation; that is, in Christ God was reconciling the world to himself, not counting their trespasses against them, and entrusting to us the message of reconciliation. Therefore, we are ambassadors for Christ, God making his appeal through us. We implore you on behalf of Christ, be reconciled to God. For our sake he made him to be sin who knew no sin, so that in him we might become the righteousness of God.” 2 Cor. 5:17-21
The Greek word translated “reconcile” here is καταλλάσσω (katallasso), which is a verb meaning “to be or become restored to favorable or friendly relations with another after a presumed wrong.” In legal parlance, two warring parties (usually and interestingly in terms of spouses in a divorce proceeding) reconcile when an agreement is reached which saves the relationship. So we and God are warring parties and we have the opportunity to salvage our relationship through the death of Christ. Christ’s death is all-sufficient, punishing sin to satisfy God’s perfect justice and reconciling mankind to Himself congruent with His perfect love.
Is this to blame for the problems in our justice system? Corey says yes because, “we have focused our understanding of God and God’s justice as the need for punishment instead of the need for reconciliation, and this has led to a broken framework in our country in regards to justice.” However, this conclusion removes the justice of God from the love of God, and the two are not mutually exclusive.
Our prisons are not overflowing because the atonement was both punitive and restorative. Our prisons are overflowing because society goes to a court created by society for justice as society understands and mandates it. We should not too broadly apply the atonement either. The atonement was designed and implemented by God to redeem mankind to Himself, not to redeem criminals to society. While there should certainly be elements of grace, forgiveness, rehabilitation, and restoration in our criminal justice system, the Christian view of the cross only influences the societal view of justice insofar as the church must accurately communicate God’s perfect justice, wrath, and love, as well as the implications of living without trusting in the death and resurrection of Christ. The church must be the catalyst of life change, not the criminal justice system. As lives are changed by a church on mission and commissioned by Christ to do so, society can slowly change as well. Until we, the reconciled, go back into “enemy” territory as Christ’s ambassadors to implore them to be reconciled to God as well, society will continue to seek its own sense of justice.
Finally, let us not be overly and unrealistically pessimistic about our criminal justice system. As with any fallen institution of the fallen world, our criminal justice system has cases of injustice in it. However, drug courts are becoming better funded and equipped to help restore people as functioning members of society without their addictions. A renewed emphasis on alternative dispute resolution methods and statutory requirements to seek mediation and/or arbitration are reducing dependence on civil and domestic relations courts. While not based on a proper theology of the atonement, these movements are capable of alleviating some of the problems and injustice in our justice system.
Despite the injustice we see, we as a human race will one day be judged, and on that day “every knee will bow, in heaven and on earth and under the earth, and every tongue confess that Jesus Christ is Lord, to the glory of God the Father.” (Phil. 2:9-11).
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I follow Christ. I have a beautiful wife Megan and three wonderful children, Harrisen, Rebekah, and Carter. I have an M.Div. from Liberty Baptist Theological Seminary, 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.