What Are We Fighting About?, Part IV--Orthodoxy and The Process of Scandal

I moved to Columbus, Ohio in 2011 to take a one-year position as a law clerk for a judge on the United States Court of Appeals.  The Court of Appeals is the level below the Supreme Court, and so we would hear appeals from every sort of case that makes its way through the federal trial courts.  We would also review what are called petitions for habeas corpus--supplementary appeals of criminal convictions (usually either life sentences or capital sentences) that occurred in state court.  When I tell people about the cases we saw during my time associated with the court, many people assume that these criminal cases were the most interesting and engaging.  But they were not, at least I didn't think so.  More than anything else, those habeas cases were frustrating.

The source of this frustration came in large part from a law called, and I am not making this up, "The Anti-Terrorism and Effective Death Penalty Act of 1996," commonly called "AEDPA."  AEDPA was passed in the immediate aftermath of the bombing of the federal building in Oklahoma City, Oklahoma, by Timothy McVeigh.  Despite its origins, the law actually has very little to do with the "Anti-terrorism" part and a whole lot to do with making the death penalty more "effective."  See, under the division of powers between the states and the federal government in the U.S. system, the majority of criminal cases, and the overwhelming majority of criminal cases that would implicate the death penalty, are handled by state courts under state law.  As a result, the federal government cannot directly change the way that death penalty cases are handled in the first instance.

So, instead, AEDPA changes the way that federal courts can review criminal convictions after the fact, via ratcheting up the "standard of review" for those convictions.  Under AEDPA, it is not enough for the federal court to conclude that the state trial court that convicted the defendant made a legal error that violated the constitutional rights of the defendant; instead, the trial court must violate a legal principle that is "clearly established."  If there is any plausible argument that the constitutional rule is unclear or ambiguous--or was unclear or ambiguous at the time of the conviction--then you never get to the merits of the defendant's argument.  Likewise, AEDPA in conjunction with some Supreme Court decisions created a series of procedural landmines for defendants.  For example, if a defendant fails to raise a particular legal issue at any of the as many as eight separate post-trial legal proceedings, then the defendant can never raise the issue ever again.  So we would routinely see defendants bringing meritorious legal arguments that we couldn't consider because that same defendant didn't raise the issue ten years and six proceedings ago in a state appellate court.

AEDPA proves that, as they say, there is more than one way to skin a cat.  If you can't or don't want to address an issue directly, you can build a mechanism around the issue to get the result you want, or at least make it very likely that result will come to pass.  The authors of AEDPA wanted to make the death penalty more "effective," by which they meant more frequent and easier to implement.  They were prevented from directly changing the process of passing sentence by the structure of U.S. federalism, so they elected to make it harder for those sentences to be challenged on the back end.  Crucially though, AEDPA doesn't just get rid of the review process altogether, which would have likely provoked far more resistance and controversy.  So, you have the hypothetical possibility of a death penalty conviction being overturned, while in practice making sure that it will almost never happen.

Slavoj Zizek often brings up a religious example of this same process, but in reverse.  The Torah clearly allows for the death penalty, and so it would be beyond the pale for Talmudic scholars to argue that capital punishment was contrary to the will of God.  Instead, they put a series of impossible procedural hurdles in front of any conviction.  For example, this commentator notes that in order for a death sentence to be imposed, "two witnesses are required to testify not only that they witnessed the act for which the criminal has been charged but that they had warned him beforehand that if he carried out the act he would be executed, and he had to accept the warning, stating his willingness to commit the act despite his awareness of its consequences."  Which, of course, would never ever happen in real life.  So, again, the theoretical possibility of imposing a death sentence is preserved, while making sure that it would never actually happen.

In both examples, the use of procedural devices is a way to get around a deadlock--or to put it in Girardian and Gospel terms, a scandal.  You can't resolve the scandal, so you work around the scandal.

One of the core scandals of Christian life in the 21st Century, and this scandal is especially acute in the Eastern Orthodox Church, is the scandal that is the Church's past.  By "the scandal of the Church's past," I don't mean all of the bad stuff that has been done by and in the name of the Church throughout its history (though, that's part of it); I mean the existence of a history that establishes norms of Church life that are both a blueprint for how to deal with the present and an impediment to dealing with that same present.  This scandal is a core scandal because it impacts each and every hot-button issue that might come up in church life, because every such hot-button issue implicates the notion of change.

The basic formulation of this scandal is as follows: "We see ourselves as in continuity with our past, because we believe that the Church is on some level protected from error via its connection through the past back to Jesus.  In the past, the Church has said X about some topic.  Whatever we may think about X from our perspective in 2016, we cannot depart from our previous position, because to depart from our previous position is to say that the Church was wrong in the past.  And if the Church was wrong in the past about something, what else was it wrong about?  And if the Church was wrong about a bunch of stuff, do we actually have any connection to Jesus?  And if we don't have any connection to Jesus, then we are out to sea.  As a result, we cannot depart from position X, even if we have serious doubts about whether position X makes any sense anymore, because departing from position X puts us out to sea."

You see various people who are not Orthodox claim that the Orthodox Church believes that it is entirely unchanging and static.  You might be able to find certain very conservative voices in Orthodoxy taking that line, but the more intelligent Orthodox commentators will acknowledge the basic historical reality that things have changed.  But Orthodoxy's way of dealing with the problem of change, it seems to me, is the AEDPA/Talmudic solution.  When I talk to Orthodox friends of mine about some controversial issue, the response I get is usually something along the lines of "well, there is no ironclad principle that says that we could never do X, but because have never done X before, we would need for there to be formal consensus in the Church behind such a change."  And how would such formal consensus be obtained?  "Well, through an ecumenical council."  That seems reasonable, until you realize that the last ecumenical council that the Orthodox recognize as being ecumenical occurred in 1351, and even that one is seen by some Orthodox as not truly an ecumenical council (pushing the last consensus ecumenical council back to the end of the 8th Century).  And if you cannot operationally put together an ecumenical council, then you fend off any changes on seemingly "neutral" grounds.  In other words, change is theoretically possible but practically extremely difficult to the degree that it approaches being impossible.

Except, perhaps, not so much.  If all goes according to plan, there will be a "pan Orthodox synod" this year in Istanbul.  While not technically an ecumenical council, it seems to have a wide ranging agenda, dealing primarily with the tangled internal relationships between the various national Orthodox Churches.  Whatever the stated agenda, however, I suspect that the very act of moving change--any change--from a theoretical but practically impossible reality to one that is both theoretically and practically possible with have wide ranging effects on the Orthodox Church.  And if Orthodox leaders think that they can corral the discussions into carefully prescribed topics, I think they are fooling themselves.  Already, you are seeing conservative voices panic about the possibility that all of the standard hot-button issues--including LGBT issues--will be in play.  As Catholicism learned at Vatican II, change creates its own momentum for change.  Once the dam breaks, the AEDPA/Talmudic solution doesn't work nearly as well at fending off changes that you find scary or challenging, forcing you to deal with them directly.  It will be fascinating to see what comes out of this council in Istanbul.

If there is a theme running through all four of the posts in this series, it is that the barrier to a change in the position of Christian churches regarding LGBT people has less to do with the merits of such a change than the problem of managing change itself.  In the first three posts, there were various ways in which a change with regard to LGBT issues (and, in the Anglican example, failure to change as well) would have ripple effects that  go beyond the narrow question of same-sex marriage or gay sexuality.  But the Orthodox example (and this dynamic is not unique to the Orthodox Church, but can be seen the most clearly in their context) shows that there is another layer at which change itself, separate from the content of the change, is a serious problem for Christian churches.

In order to address the LGBT question on the merits, we need a way of "de-scandalizing" the past.  As I mentioned yesterday, I think Girard provides the best vehicle for beginning to do this, and James Alison has done some preliminary work in this area.  Procedural barriers may fend off the problem for a while, or even a long while as the Orthodox Church proves.  But they don't solve the basic problem.


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