There have been a series of stories recently about Christians getting into trouble with the law for following their conscience. For example, a photographer refusing to work on a homosexual wedding, or a baker refusing to make a wedding cake for a homosexual couple. Many Christians have raised their voices in protest against these rulings. They view the ruling as having been incorrect, and pray that it will be overturned.
However, the most curious response by some Christians has been to argue that the court made the right decision because it made the decision consistent with the law. The decision may not have been the correct decision according to God's law, but the court must make decisions according to the civil law. So if the law states that discrimination against homosexual couples is illegal, then it is perfectly right and good for the court to decide against Christians who are required to violate God's law.
I think this perspective is mistaken.
Firstly, it is certainly not the case that a court should always make a decision consistent with the civil law. Consider the case of judges in Nazi Germany. Nazi Germany had many laws which contradicted God's law. For example, under the civil law, the Ten Boom family was clearly in the wrong for hiding state fugitives. But nobody would ever say that the judge was in the right for sending the family to the concentration camp. Rather, we hold the judges, police officers, and soldiers all responsible for helping to perpetuate the evil in the system. When the law would requires us to violate God's law, it is man's law we should disregard not God's law.
Secondly, it is simplistic to view courts are merely interpreting the law rather then creating it. We live in a common law jurisdiction, not a civil law jurisdiction. One of the central differences between common and civil law is the role of precedent. In civil law, the written law attempts to cover all possible cases. In common law, judges apply existing principles to new cases. Their decisions become binding on future judges. This means that judges do in fact create law, not simply interpret it.
Historically we can find many cases where courts made decisions and issued precedents that did not derive from the law. Consider how abortion became legal in the United States. No law was passed. Rather, the supreme court decided in Roe v Wade that the constitution made abortion a constitutional right. To suggest that the courts merely interpret the laws is untrue.
In this case, the courts have to decide the legal implications of the intersection of anti-discrimination laws, freedom of speech, and freedom of religion. No matter what the courts decide on this issue they will be making law.
Thirdly, if the courts are bound to find against Christians following God's law, than the law the courts follow is wrong. It does not matter what precedent, statutes, constitutions, or amendments say. They are WRONG. There is a higher law, God's law. Appealing to the law as it stands as if that settles anything is completely irrelevant. If the law is wrong, the law is wrong.
Suggesting that courts have made the right decision because they are following the law is untenable. The decision is wrong regardless of what the law says. Courts do not simply follow law, they make it both in legal theory and historical practice. Furthermore, if man's law requires the violation of God's law, so much the worse for man's law.
