Fifteen years ago in Paris, I had a conversation with a young existentialist who said something as unflattering as it was memorable: “Whatever the world does the church does ten years later and worse.” My new friend was talking about Christian music, describing a decade lag factor, a slowness to recognize and adapt to cultural changes that, in his estimation, rendered the church musically irrelevant.

It is obvious to even the most casual observer that culture is undergoing seismic shifts, shifts that are drastically altering the landscape of law, politics, religion, family, sexuality, and more. If it takes ten years for us to reckon seriously with the reality of these shifts, we will find ourselves culturally irrelevant (as some would argue we already are). Redemptive Christian engagement with public life—to “seek the welfare of the city” in Jeremiah’s words—requires that we gain clarity on the new spirit of the age, that we understand the emerging metanarratives that are reshaping our national consciousness and legal institutions.  

The New Moral Legislators

One way to describe the shifting landscape is as a transition from a postmodern outlook to what we might call “post-postmodernity.” Just as postmodernism was both a coming to fruition of modern thought as well as a discernible break from it, so there are both continuities and breaks between postmodernism and what we now find sweeping through American law and culture. My focus here is on the breaks, two in particular.    

The first can be seen in the way that “legislating morality” has moved from being strictly verboten in the postmodern mileau (at least in principle) to becoming the “new normal.” In “Beyond Capes and Cowbells”, my Fall 2014 piece for the Journal of Christian Legal Thought, I argued that the notion of moral neutrality in law is a ruse, that the claim ‘Keep morality out of law’ is really a euphemism for “I want to keep your morality out of law so I can get mine in.” I was speaking to what has been a long-standing tactic of public persuasion for at least a generation. Painting any legislation you might oppose in a moral light, showing its supporters to be moralistic zealots seeking to impose their ethical framework on the rest of us (perhaps even equating it with the ever-dreaded “theocracy” for maximum effect), was a winning strategy for swaying public opinion. It became standard fare in politics during the heyday of postmodernism.

After all, one of the axioms of the postmodern ethos is unfettered individual freedom, including moral freedom from any power, including the power of government, to cast moral judgment on the self-defining “I.” This was enshrined in Planned Parenthood v. Casey with Justice Kennedy’s famous redefinition of freedom as “the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life.” Ronald Dworkin, one of the most articulate and influential champions of this new freedom, branded it the “right to moral independence,” which entails that the law must treat competing moral visions with “equal concern and respect.”[1] D.A.J. Richards likewise defended “the fundamental liberal imperative of moral neutrality with regard to the many disparate visions of the good life.”[2]

This is no longer the case. In the wake of Windsor and Obergefell, “keep morality out of law” style arguments can no longer be made with a straight face, either in the public sphere, the courtrooms, or in the halls of legislation. The Supreme Court majority did not issue these rulings because they were economically efficient or the formal deductions of existing law, but because they believed they were the right thing to do, “right” in an explicitly and unapologetically moral sense of the word. Those who celebrate the Court’s decision and activist judges who have extrapolated on its precedent are not merely celebrating legal or political victories, but also moral victories, the triumph, as they see it from within their own plausibility structure, of equality over discrimination, love over hate, etc.

This represents a clear and decisive break from postmodern style legal reasoning. You can no longer live under the legal protection of Kennedy’s “right to define one’s own concept of existence” if your concept happens to include the notion that male and female represent beautiful distinctions that should be celebrated rather than erased, or if you happen to believe that mother and father cannot be made interchangeable or optional categories without something precious being lost. The law should no longer embody Richards’ “moral neutrality with regard to…. disparate visions of the good life” or treat you with Dworkin’s “equal concern and respect” if your vision of the good life clashes with the new sexual orthodoxy.

This is the first shift into what I have been calling post-postmodernism. From another angle, of course, this is nothing new. Postmoderns also enshrined their own moral visions in law over and against others. In J. Budziszewski’s words, “their own views of the good prevail without challenge, just by pretending that they aren’t really views of the good.”[3] What is new is that post-postmoderns no longer pretend. Their view of the good is openly celebrated and marketed to the masses as precisely what it is, a view of the good that they are seeking to legislate over and against rival visions of the good. There was what Harvard’s Lon Fuller called “the pretense of the ethical neutrality of positivism.” In Fuller’s words, “There is indeed no frustration greater than to be confronted by a theory which purports merely to describe, when it not only plainly prescribes, but owes its special prescriptive powers precisely to the fact that it disclaims prescriptive intentions.” [4] That “pretense of ethical neutrality” is now gone and buried (and with the rhetoric of his Windsor and Obergefell rulings, we may say that Justice Kennedy was its undertaker).

From “Trashing” to the Triumph of Metanarrative        

With this shift toward ‘moralistically legislating morality’ and away from ‘legislating morality while pretending not to’ comes another significant break from postmodernism. It is a related shift from “trashing” to the triumph of metanarrative. Postmodern theorists (I am thinking here especially of Foucault) were adept at exposing metanarratives as power-plays. This postmodern impulse took shape in American Jurisprudence as the Critical Legal Studies movement. CLS became known for “trashing” legal opinions and rulings, that is, doing the postmodern deconstructionist’s work of stripping away the veneer of legal objectivity (“unmasking” to use Foucault’s term) to show this or that law as a mere subjective power-play. Myron Steeves clarifies:

Critical Legal Studies persuaded much of the legal academy that no one had anything to say that wasn’t limited to their own particular experience and that would, thus, become oppressive if advanced by law against a boarder scope of society. This deconstructionist critique would seem to render conversations about morality and law useless.[5]

Indeed, as CLS scholar Joseph Williams Singer puts it, “legal reasoning is a way of simultaneously articulating and masking political and moral commitment…. Law and morality have no rational foundation that once and for all compels persons to prefer certain institutions and rules above others.”[6]

Post-postmoderns, by contrast, are perfectly happy to compose morally charged metanarratives and use them in precisely the power-seeking ways that the postmodern found so disingenuous and oppressive. Hear the tone of the new metanarrative:

Being queer is more than setting up house, sleeping with a person of the same gender, and seeking state approval in doing so… Being queer means pushing the parameters of sex, sexuality, and family, and in the process transforming the very fabric of society.[7]

I think the future of the world, the hope of the world depends on us, that men who love men are the only people who can save this planet. That is our purpose.[8]

A good, old-fashioned postmodern deconstructionist could trash such statements and the explicitly moralistic metanarrative they reflect, “unmasking” them as power-plays to marginalize and oppress people who seek to live by traditional sexual ethics. But we have entered a new phase in which to question such statements in the legal academy or the public sphere automatically renders you the oppressor.

Plot Holes in the Post-Postmodern Metanarrative

What, then, is to be done in light of these shifts? How do we engage the post-postmodern metanarrative that now wields so much power in law and culture? Since ideas have consequences and bad ideas have bad consequences, our answer must include understanding (and lovingly subverting) that metanarrative. We must expose its plot holes and how they hurt God’s precious image-bearers. And we must do so while speaking and living out before what Francis Schaeffer called “the watching world” a more beautiful, compelling, and true narrative—the Gospel of Jesus’ death and resurrection and the life-giving implications of his Lordship over all of existence.       

Post-postmodernism is here. Whether it is here to stay or for how long will be contingent, in part, on our ability to meaningfully engage its metanarrative and articulate with clarity, conviction, and compassion, the better, truer story.

 

[1] See Dworkin’s Taking Rights Seriously (Cambridge, MA: Harvard University Press, 1978) and Sovereign Virtue: The Practice of Equality (Cambridge, MA: Harvard University Press, 2002).

[2] D.A.J. Richards, Sex, Drugs, Death, and the Law, 9 (Totowa, NJ: Rowman and Littlefield, 1982). Emphasis in original.

[3] J. Budziszewski, What We Can’t Not Know: A Guide, xiii (San Francisco, CA: Ignatius Press, 2011).

[4] Lon Fuller, Positivism and Fidelity to Law: A Reply to Professor Hart, Harvard Law Review, 71 (1958) reprinted in Jurisprudence, Classical and Contemporary: From Natural Law to Postmodernism, 2nd Edition, Eds. Hayman, Levit, and Delgado, 630 (WEST 2008).

[5] Myron Steeves, Healing the Breach Between Law and Virtue, Journal of Christian Legal Thought, 1-3: 2 (Fall 2014). The deconstructionism of the CLS opened the movement to some serious critiques. Perhaps most fatal were that CLS dishes out sharp criticism of whatever policies it finds disingenuous and oppressive, but offers nothing constructive, no meaningful, specific, helpful solutions. Second came the realization that there is nothing to keep deconstructionism from deconstructing itself, showing its own work to be nothing but a masked power-play, nothing beyond a self-serving bias to keep the deconstructionist’s axe from striking the trunk of the CLS movement itself.

[6] Joseph William Singer, The Player and the Cards: Nihilism and Legal Theory, The Yale Law Journal, Vol. 94, Number 1, 3-20:14-15 (November 1984).

[7] Paula Ettelbrick, Lesbians, Gay Men, and the Law, 398, 400.

[8] Christian de la Huerta, Articles of Faith: In the Spirit of Pride, www.thetaskforce.org, (16 June 2005)