The Rules of Law: The Alabama IVF Case and the Proper Role of Judges

Recently, Alabama’s supreme court published its ruling in LePage v. Center for Reproductive Medicine. Several couples sued a fertility clinic in the state for the destruction of their embryos the clinic kept for In Vitro Fertilization (IVF). Their suit has caught national attention because it sought damages under Alabama’s “Wrongful Death of a Minor Act.” The Supreme Court, in an 8-1 vote, sided with the parents in defining the embryos as “children” and their destruction a “death” under the Act’s terms.

The decision set off a firestorm across the country, touching on some of the most intense debates of the moment. First, the case was linked to the ongoing battle regarding abortion. The Pro-Life movement has used the decision to point out the difficult moral questions involved in IVF, questions that concern the extent of our obligations if human life begins at conception. Pro-Choicers have connected the outcome to their defense of abortion rights, saying this decision points to the extremes to which abortion opponents will go now that Roe v. Wade has been overturned. For their part, Republicans, including presidential candidate Donald Trump, have largely urged Alabama to pass legislation protecting IVF. In fact, Alabama’s governor swiftly signed a bill providing sweeping protection for IVF facilities from lawsuits like the case just decided.

Second, the reasoning used by the justices to reach their decision placed the court in the middle of the battle over so-called “Christian Nationalism.” In particular, Chief Justice Tom Parker’s concurring opinion supported the decision with references to numerous passages from the Bible as well as medieval and Reformation era Christian theologians. In addition to Genesis, Exodus, and Jeremiah, Parker quoted Thomas Aquinas, John Calvin, and Dutch theologian Petrus Van Mastricht in making his case defending the court’s decision. Praise and outrage ensued on this score as well. The praise has stated that Chief Justice Parker pointed back to the views of the American Founders that God is the Creator of human life and the source for true justice. Critics have argued that his reasoning shows a move by the country or at least by the political Right toward theocracy.

Chief Justice Parker’s use of Reformation era sources gives a particular opening for spiritual descendants of its magisterial wing to contribute to these discussions, articulating how our past speaks fruitfully to the present. One issue raised, yet not adequately discussed, concerns the issue of structure in politics, specifically the ordering of offices that exercise rule.

The Alabama decision was a legal case reasoned about and decided by judges as opposed to other officers in the political system. From the perspective of Protestant political theology, how are we to think of the actions of judges as distinct from, say, those of a monarch or elected official?

The Alabama IVF case forces consideration of this issue, as the judges consciously considered their role in relation to the office of legislator–that is, those who make the laws which judges must then enforce, such as congressmen, presidents, and monarchs. The ongoing retrieval of Protestant political theology over the past generation has done much to recover where we look for political wisdom, namely Scripture and natural law. We also have seen much good work on what that political wisdom is, parsing out the content of God’s political teaching to us in nature and His Word. Yet another task remains: we must attend to how a political community exercises proper rule. This “how” concerns more than the study of statesmanship—the exercise of prudence in pursuit of justice. It also includes considering how we structure the exercise of political rule through the division of public offices. How should different officeholders see and comport themselves within the overall civil structure?

This essay will seek to unpack that relationship between the office of judge and the exercise of rule, drawing from the Alabama case and with help from Reformation political theology. In particular, we will examine how the judges in the Alabama case approached the law, seeing their own exercise of rule as a particular kind of application of the rule of law. That approach bears a reasonable resemblance to the political teachings of men like Richard Hooker and Martin Bucer that we would do well to retrieve and develop.

Categories of Law

To understand the nature of the judicial office, we first must consider the law whose existence helps define judges’ roles within a political community. The Alabama justices did not use the concept of law in a monolithic sense. Instead, they called upon three different kinds of law in their opinions. Richard Hooker (1544-1600) gave the most famous Protestant articulation of different kinds of law in his Laws of Ecclesiastical Polity. Hooker’s Laws has become a standard articulation of Anglican theology, worship, and church governance. Its political teaching has influenced legal and political thinkers such as John Locke, William Blackstone, and many more.

Hooker wrote in Book I of his Laws, “that which doth assign unto each thing the kind, that which doth moderate the force and power, that which doth appoint the form and measure, of working, the same we term a Law.” We live in an ordered universe. Law is that ordering wherein we see a subject’s definition, purpose, means of working, and limitations of the same. This definition of course went well beyond what we think of as laws in the political sense. But Hooker meant this definition to encompass those laws as well as many more. Drawing from (though also modifying) medieval sources, Hooker distinguished law into the eternal law, the law of nature, the celestial law, the law of reason, human law, and divine law. The eternal law formed the basis for the rest, flowing as it did from the character and will of God. By it, God, “is a law both to himself, and to all other things besides.” In Protestant political theology today, we have focused on the eternal law’s manifestation in three of the others. The first is the law of reason, which is usually referred to as the “natural law”—those principles of truth and goodness we understand through use of our God-given rational faculty. The second is the human law, those decrees, statutes, precedents, and other humanly-wrought regulations. The third is the divine law, meaning God’s special revelation of His commands originally in verbal and written form, now preserved for us entirely and infallibly in Holy Scripture.

Much of our present political theology has sought to retrieve the interplay between the natural law, the divine law, and the human law. Scholars have shown Protestantism’s longstanding adherence to the existence of natural law as a real and useful measure for the human law in political communities. We have worked to articulate what role divine law plays in human lawmaking as well, showing its link to the natural law as a restatement, clarification, and amplification of God’s will for us as political beings.

The Alabama Court at times appealed to all three of these sources of law. For human law, they interpreted the 1872 statute on wrongful deaths of minors. They touched on the Alabama constitution, a law higher than statute but still merely human. Specifically, they called upon the 2018 text, passed by voters, known as the “Sanctity of Unborn Life” amendment. That state constitutional amendment said that, “This state acknowledges, declares, and affirms that it is the public policy of this state to recognize and support the sanctity of unborn life and the rights of unborn children, including the right to life.” Moreover, certain judges cited nature as a source. The majority, quoting English jurist William Blackstone, referenced the right to life as, “inherent by nature in every individual.” Finally, as noted above, Chief Justice Parker made appeals to theological sources in support of the decision. In addition to quoting Scripture and Christian theologians, he wrote that, “human life cannot be wrongfully destroyed without incurring the wrath of a holy God, who views the destruction of His image as an affront to Himself.”

Much breathless analysis of the decision stems from seeing only that the justices called on all three kinds of law. These critics treat the opinion’s invocation of Scripture and nature in particular as an attempt to place those laws over the human in authority and thus to import theocracy. In a New York Times’ piece, for example, Linda Greenhouse opined that “there’s no avoiding the theological basis” of the court’s decision and that the opinion, “has awakened the American public, finally, to the peril of the theocratic future toward which the country has been hurtling.”

But this interpretation deeply misunderstands how the Court actually made use of different categories of law. To clarify and correct, we must turn to the issue of offices and ask about the relationship of judges to these categories.

Offices and Laws

We begin with the structural context within which the judges acted. The American Constitution divides up political rule according to the theory of the separation of powers with most states, including Alabama, doing the same in their constitutions. The ancient mixed regime had created competing institutions based on who commanded each (monarchy, aristocrats, commoners). The American system, drawing on early modern thinkers like Locke and Montesquieu as well as the history of the English Civil War, created offices distinguished by the political function they exercise. Not all divisions of power historically or among theorists were the same. Locke and Montesquieu, for example, both had three types of power but not the exact same three. Americans went with the Frenchman Montesquieu and his tripartite division between legislative, executive, and judicial. Political power here was divided according to each function’s relationship to the rule of law—making it, enforcing it, and adjudicating disputes according to it. The contours of the office, then, were to be understood in light of the power given to it.

Reformation political theology as a whole did not require one to separate out these functions into discrete offices. Yet Protestants partook in developing this theory in thought and practice. More importantly for our purposes, the intellectual distinction between the nature of the three functions aids in understanding the relationship different offices possess to different categories of the law.

Legislators, for example, create law. Of course, the law they create is human law under Hooker’s classification. This task brings with it a particular relationship to the other forms of relevant law, namely natural and divine. The natural and divine laws both command and guide the human laws insofar as the former two prescribe political matters. Thus, Hooker argues that, “In laws, that which is natural bindeth universally.” Moreover, on those matters which Scripture discusses, it stands as the highest authority. Hooker is clear that Scripture speaks to political matters, even restating principles of the natural law so they have less chance of mis-construal by human beings.

This relationship binds the legislative office within certain bounds. But we must not make this binding overly prescriptive. There is a tendency among those discovering the natural law to make it answer exhaustively most if not all political matters. Hooker made no such error. He described some human laws as “mixed.” They concern those laws which originate fully in natural law and “containeth whatsoever being in itself naturally good or evil.” But the law is mixed because the human legislator has much left to determine for himself. The most basic precepts of the natural law need no legislation to know because they are too clear. But human law addresses the next steps of particular application, which Hooker says “is notwithstanding more secret than that it can be discerned by every man’s present conceit, without some deeper discourse and judgment.” It is more secret because of the Fall of man, through which sin can become custom in a society and thereby “have gotten the upper hand of right reason with the greatest part.” The human law then restates and clarifies the application of natural law (and its divine restatements) in ways more concrete for our communal lives.

At the same time, human law provides an element of enforcement for the natural law and where Divine law speaks to politics. Because of sin, the people then do not perfectly obey God’s natural law by their own will. Therefore, Hooker reasons, “no way is left to rectify such foul disorder without prescribing by law the same things which reason necessarily doth enforce but is not perceived that so it doth.” Hooker recognizes here that human legislators possess the power to attach certain penalties to law in service of the natural law, giving the coercive enforcement that the natural law lacks adequate intrinsic tools to do itself.

We see this kind of reasoning at work in the Alabama case, too. Again, Chief Justice Parker described the people passing the human life amendment: “It is as if the People of Alabama took what was spoken of the prophet Jeremiah and applied it to every unborn person in this state: ‘Before I formed you in the womb I knew you, Before you were born I sanctified you.’” As noted above, other opinions cite the Alabama laws as seeking to codify the natural right to life. In addition, the justices saw their own wrongful death statute and other human legislative actions taken within the state as providing a means of other non-existent enforcement to these natural and even divine precepts of justice.

At the same time, Hooker speaks of laws he calls not mixed but “merely human.” These do not come from mandates of the natural or divine law. Hooker wrote that, “the matter of them is any thing which reason doth but probably teach to be fit and convenient.” Plenty of laws bear little to no direct mandate from the natural or divine laws. Yet political societies need them as part of ordering the living of our lives in community (think of which side to drive on the street). Hooker emphasizes “that till such time as law hath passed amongst men about it, of itself it bindeth no man.” However, once passed, it is binding on everyone to whom the law applies. In this realm, the human legislator possesses nearly perfect freedom in the composition of laws.

We must know the preceding about the legislative office to understand the judges’ role. For the judicial function possesses a different relationship to the law. The judge does not make the law, at least not in the same sense as does the legislator. He is tasked with resolving disputes between litigants who come before him. Resolving a dispute requires application of some standard to determine winner from loser. That standard is the law. Thus, judges interpret and apply law in dispute resolution. We see Moses acting in this capacity when Jethro, his father-in-law, advises him to establish a broader system of judges with distinct jurisdictions over persons and the capacity to appeal up the line, eventually to Moses himself.

This function usually assumes the existence of some human law to which the judge is bound. Judges do not act on natural or divine law directly but only through the prism of human enactment. This all means that judges do not have as broad a sphere of legitimate action as does the legislator. The judge acts downstream from the making of human laws and holds a responsibility to interpret and apply that law, not just natural or divine principles. Therefore, when the legislator exercises discretion in how to enforce the human law, his decisions limit or even eliminate the judges’ discretion on the same matter. Where the legislator had broad freedom on “purely human” matters to bind or not, his binding obligates the judge to enforce those mandates.

Reformation sources acknowledged this point. Martin Bucer (1491-1551), who Thomas Cranmer brought to Edwardian England to train English clergy, offers some help in thinking about this point. In his work, De Regno Christi, he saw the role of judges as one of applying the existing human laws. He argued that “this must be required of judges, that they judge sincerely according to the law, i.e., according to the meaning germane to the laws, and not permit themselves to relax any part of the laws in any case.” He added the question, “for what profit it is to make excellent laws [a prior legislative task] if it is conceded to the judges that they may depart from them according to their good pleasure in making judgments, or even that they interpret the laws fraudulently?” None of these points meant Bucer denied divine and natural law. But the role of the judge affected his relationship to those laws.

Scripture supports this point. St. Paul held his Roman punishers or judges accountable to the Roman law on several occasions (see Acts 16:16-40; 25:9-12), though one might cull natural precepts from those situations. Ancient Israel would seem to be an exception on this point, since God acted as the legislator for the positive laws of the polity. But the parallel remains an instructive one as God’s civil law applied the moral law to Israel as a particular political community. God was the equivalent in that context to the human legislator as that office operated in all other historical instances. The Old Testament judges throughout are warned to act according to the law, not showing partiality, taking bribes, or any other manner that would distort faithful application of the positive statutes of the community. Jehoshaphat, in 2 Chronicles, for instance, warns the newly installed judges to, “Consider what you do, for you judge not for man but for the Lord. He is with you in giving judgment” (2 Chronicles 19:6).

Here, too, we see the Alabama judges approximating these principles. The justices did believe themselves constrained to follow the written law of Alabama in the IVF case. The human legislator had the greater freedom to act according to natural and divine sources with the judge much more constrained. Why, then, did they reference the other forms of law at all? They did so as a means of understanding the human law. Justice Mitchell, author of the majority opinion, called upon, “the ordinary meaning of ‘child’” as understood, not just now, but through sources contemporary to the Alabama statute in dispute. Chief Justice Parker noted that, “The goal of constitutional interpretation is to discern the original public meaning.” But the judges understood that the meaning to the human law required comprehending the natural and divine laws from which the human legislators drew. It was from that commitment that he quoted Blackstone and referenced the concept of natural rights and what nature demands in the pursuit of justice. It was from that commitment that Chief Justice Parker cited the Declaration of Independence and the theological sources he used. Far from instituting a judicial theocracy, the judges sought to know the mind of the human legislator through that human legislator’s own interaction with the other classes of law.

The Alabama laws’ alignment with the natural and divine does obscure the point most often debated on this front: whether judges should disregard the human law when it conflicts with these prior forms of law. But this instance does show a place for the judge to consult natural and divine law when the human law agrees with them. The interplay between the categories of law strengthened the judicial reasoning and bolstered the connection between law and justice. It provides a helpful example for continued renewal of judging committed to interpreting human statutes as a part of the broader concept of law.

Conclusion

The reaction to the Alabama IVF opinion showed the decadence and confusion we suffer from regarding the issue of unborn human life. The opinion itself sought a careful protection of the unborn in accordance with the laws of Alabama. But in the decision, we see more. We see the judges acknowledging the existence of law beyond those made by fellow men. We see them considering their role as judges in how the different categories of law apply. Thereby, they give us a context to further develop Protestant political theology, seeking a renewed view of how political offices affect the pursuit of the good.

Adam Carrington is an Associate Professor of Politics at Hillsdale College where he is the Patricia and LaMothe Chair in the U.S. Constitution. He holds a Ph.D. from Baylor University. He is a Commonwealth Fellow at Ad Fontes. In addition to scholarly work, he is a contributing columnist for the Washington Examiner and World Magazine. His book on the jurisprudence of Supreme Court Justice Stephen Field was published in 2017 by Lexington Press. In the 2020-2021 academic year, he served as a Garwood Visiting Fellow in the James Madison Program at Princeton University.

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