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"Moral relativism," religious faith, and the law.


RELIGIOUS CONSERVATIVES are quick to indict secularists on the lofty charge of moral relativism," and, curiously, the accused are usually sluggish at best to raise a serious defense. Robert H. Bork, former U.S. Court of Appeals jurist and Ronald Reagan's failed nominee to the Supreme Court in 1987, has proven a particularly aggressive accuser. In A Time to Speak: Selected Writings and Arguments (ISI Books, 2008), Bork claims that nothing encourages moral relativism so blatantly and effectively as "radical individualism or autonomy" in the law, which he sees as the "leading feature of modern constitutional adjudication."

In one of the book's many confrontational essays, Bork offers the martyrdom of Thomas More (1478-1535) as an especially apt analogy to the current culture war between "moral indifference and cheerful nihilism" on the one hand, and "social order" always the result of religiously inspired law, on the other. More, of course, was executed for refusing to publicly recognize Henry VIII as Supreme Head of the Church of England and for his failure to endorse certain policies that would have ended the Pope's supremacy in Britain.

Mores recalcitrance should not be interpreted as rebellious acts of disobedience, Bork warns, or as selfish substitutions of private morality for public duty. Instead, we should behold them as heroic exemplars of "submission to external authority, a conscious and difficult denial of self." More was sainted, in other words, because he sacrificed everything personal, including his own life, for the sake of "God's law." Bork apparently thinks that More felt no personal affiliation with the God he deemed worthy of his absolute devotion.

In dramatic contrast, however, contemporary American judges who create constitutional laws--those pertaining to individual rights, in particular--which are nowhere to be found in the Constitution's text, represent to Bork the zenith of self-serving disobedience. The modern standard that shamelessly "glorif[ies] the individual conscience," he insists, has resulted in a host of legal abominations, including "jury lawlessness" (the O.J. Simpson verdict and lack Kevorkian acquittals) and the Senate's "nullification of the law of impeachment." (Bill Clinton, no doubt.)


"If disobedience is ever justified," Bork concludes, "it is only when the issue is one of transcendent importance and when you are absolutely sure of the right and wrong of the matter." But the author's romantic sketch of Thomas Mores personal sacrifice--if indeed it can be fairly described as such--fails to reveal the full truth behind religious obedience. Perhaps we should consider as well a few more common, though certainly less officially celebrated, accounts of submission to "God's law."

Dennis and Lorie Nixon of Altoona, Pennsylvania, for example, lost two children in the early 1990s. When their younger son, Clayton, fell victim to a common ear infection and pleaded to his parents to make the pain stop, the Nixons chose to address the problem with prayer rather than medical science, in keeping with their Christian faith. Clayton's tiny body eventually succumbed to extreme dehydration and malnutrition and, sadly, he never recovered.

Blair County District Attorney William Haberstroh prosecuted the Nixons on charges of involuntary manslaughter and child endangerment. After a plea of no contest, they were sentenced to probation. When asked what he hoped to achieve, Haberstroh answered, "What I want to do is not change their belief, but change their conduct." But, for better or for worse, as people believe so shall they act.

So maybe it should have come as no surprise that, when Clayton's older sister took ill, the Nixon family elected once again to forego secular medicine in favor of prayer and anointment with oil, consistent with scriptural teachings. Shannon's mood improved at one point, so her parents praised God for his perceived mercy. But the child's condition quickly deteriorated, and, following another round of intense prayer, Shannon died at the very end of spring in 1995.

According to the autopsy, Shannon had suffered from diabetic ketoacidosis (DKA), which made her blood more acidic than its surrounding tissues. Although the disease is incurable, it can be treated scientifically with regular insulin injections typically costing less than one dollar each. Without the shots, victims of DKA will surely perish. Thus, the Nixons' decision to treat their daughter with prayer alone sealed her regrettable fate. "They sacrificed this little girl for their religious beliefs," Haberstroh concluded after he filed a fresh set of criminal charges.

I decided to delve further into the facts of these unfortunate cases when I read about an eerily similar situation in my home state of Wisconsin. By March 26, 2008, the Associated Press had begun to publish reports Concerning a little Weston girl--eleven-year-old Madeline Neumann--who had been obviously sick for about thirty days. Instead of seeking medical care, her parents, Leilani and Dale, chose to pray for Madeline's recovery. She died from DKA on March 23, Easter Sunday. Eventually, the Neumanns were charged with second-degree reckless homicide. But Marathon County District Attorney Jill Falstad decided she could not charge them with child abuse because section 948 of the Wisconsin statutes provides a criminal exemption for religious parents who choose to treat their afflicted children with nothing but prayer.


I had no idea how frequently these cases occurred across America--or how bizarre and horrifying the details could be--until I read about literally hundreds of them in a newly published history of this collective national disaster, When Prayer Fails: Faith Healing, Children, and the Law (Oxford, 2008), written by Shawn Francis Peters, professor of history at the University of Wisconsin-Madison. Typical offenders, Peters observes, are "intensely religious parents whose lives revolve around the doctrines and practices of small, close-knit Christian churches that ground their doctrines in narrowly literal interpretations of the Bible" Young victims live anywhere from California to Massachusetts and, incredibly, their parents are seldom prosecuted because thirty-nine of our fifty states provide religious exemptions to child abuse or neglect charges, and nineteen states permit religion-based defenses to felony crimes against children.

One might reasonably presume that faith-healing fatalities had long ago become a vestige of our more primitive past, given recent and profound scientific advances--the germ theory of disease in particular. But in April of 1998, as Peters reports, pediatrician Seth Asser and children's advocate Rita Swan published an alarming study in the highly respected journal Pediatrics that proved otherwise. According to Peters, Asser and Swan investigated 172 child deaths in American faith-healing churches during a twenty-year period and discovered that the vast majority of them had ensued as a result of religion-based neglect. One hundred forty deaths were caused by conditions for which medical science provided a 90 percent survival rate. Another eighteen resulted from diseases where victims could have expected to endure better than 50 percent of the time.

Such incredible stubbornness, of course, could originate from only one source, beginning with the Old Testament. In Exodus 15:22-27, God purportedly advised the Israelites that it is "the Lord who heals you." 2 Chronicles 16 warned that Asa was gravely mistaken in seeking assistance from a physician instead of God. In the New Testament, the author(s) of both Mark and Luke characterized doctors as inept buffoons (somewhat ironically, because Luke was supposedly a physician himself), while the author(s) of John depicted Jesus as a healer of unlimited capacity who could even raise Lazarus from the dead. Those themes reverberated throughout the book of Acts and, finally, in the Epistle of James, Jesus was said to have prescribed prayer and anointment with oil as the ultimate remedy for all bodily afflictions.

Most of us realize that prayer is valuable, if at all, only to the individuals who do the praying, and only at an unconscious, therapeutic level--particularly during trying and desperate times. In other words, prayer-healing is best understood as a self-administered psychological and, in the end, neurobiological phenomenon. But I also suspect that informed common sense will continue to elude the very limited intellectual horizons of religious literalists who will no doubt always believe that worldly knowledge in contradiction of religious dogma--science, most conspicuously-is the enemy of God and the thief of souls. Which is fine, I suppose, at least for them.

But Peters' important book raises a much more pressing question. What about their innocent children; and what, if anything, should we do about the statutory exemptions that expressly invite fundamentalist parents to sacrifice their own kids on the pyre of personal religious conviction? In a 1944 decision, Prince v. Massachusetts, the United States Supreme Court addressed that very question. "Parents may be free to become martyrs themselves," wrote Justice Wiley Rutledge. "But it does not follow that they are free, in identical circumstances, to make martyrs of their children." Along with all rights--including parenthood and freedom of religion--come enforceable responsibilities. At some point, one would think, faith must summon the courage of humility, if not of rationality. And surely that point is traversed by some considerable distance whenever a little boy or girl dies for lack of a doctor's pill.

When Prayer Fails speaks quite clearly as well to Bork's and others' concerns about the social malady of moral relativism and their blanket prescriptions for religious obedience. Is not reliance on whatever a church and its scriptures say is moral--in the end, believing whatever one wishes to be true--and the coincident abandonment of individual reason and judgment not the epitome of moral relativism? Had their parents thought so, the Nixon and Neumann children would probably be with us today.

The pertinent question is not, as Bork suggests, whether moral standards exist. Of course they do. Rather, the critical issues are, first, which standards are best suited to accomplish which goals, and, second, which laws--those attributed to God, or those admittedly created by human beings--are really the self-indulgent artifices of wolves masquerading in sheep's clothing.

But Don't Overlook:

The Oxford Guide to United States Supreme Court Decisions--2nd ed. (Oxford Univ. Press, 2009): Legal scholars Kermit L. Hall (now deceased) and James W. Ely Jr. have collected and edited more than 450 contributions by 160 leaders in their fields. Arguably, the most important U.S. Supreme Court cases through 2008 are concisely and expertly analyzed, with particular attention paid to historical and social backdrops and the relevant Court's particular approach thereto. This revised edition adds discussions of recent and controversial decisions on eminent domain, religious displays, gun control, and the status of "enemy combatants." As a quick and authoritative reference tool, The Oxford Guide is a veritable steal at $35.



Religion and the Constitution: Establishment and Fairness (Princeton Univ. Press, 2008): In this second of two impressive texts (the first, subtitled Free Exercise and Fairness, was published in 2006), former U.S. Deputy Solicitor General and now Columbia University professor of law Kent Greenawalt discusses the First Amendment's ever-divisive establishment clause. The author first introduces the clauses varied and highly disputed intellectual history and then handily tackles the twenty or more discreet issues most heavily adjudicated over the last half-century. Greenawalt's double-volume set will be well received by those who appreciate relatively straight-forward and agenda-free analyses of truly complex and contentious subjects.

Kenneth W. Krause is a contributing editor and books editor/columnist for the Humanist, and a contributing editor for Skeptical Inquirer. He published frequently in Skeptic and Wisconsin Lawyer as well. He may be contacted at
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Title Annotation:THE GOOD BOOK
Author:Krause, Kenneth W.
Publication:The Humanist
Article Type:Book review
Date:Nov 1, 2009
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