Lutheran Lawfare
A word was coined in 1975 that has gotten a lot of traction as of late: “Lawfare.” It is a portmanteau of the words “Law” and “warfare.” Lawfare is a weaponized use of the law (in the civil sense) that turns the legal process itself into punishment. This serves as a disincentive for a person to do something that is legal or permitted for fear of being made subject to lawfare. Wikipedia has an entry for lawfare, and defines it as “the use of legal systems and institutions to damage or delegitimize an opponent, or to deter an individual's usage of their legal rights.”
We have our own versions of lawfare in the LCMS, as we have various bureaucratic procedures and processes that are so expensive, time consuming, and cumbersome, that it is typically better to just put up with a lot of stuff rather than even try to correct it. Thus, we simply do “not see” a lot of things, or we complain about them privately while people are publicly scandalized by horrific things year after year with nothing ever being down about it.
But we also have another kind of lawfare: the false accusation of violating the eighth commandment.
Luther’s thoughts on the eighth commandment as recorded in our catechisms are pastoral works of genius, are beautiful guides to living the Christian life, and are binding upon Lutherans by profession of faith. But hardly a day goes by where someone isn’t publicly accused of a “violation.” Interestingly, it’s almost always someone who disagrees with said “violator.” I suppose that’s just a coincidence. And, of course, since nobody who calls out “violations” is a poor, miserable sinner himself, every accusation must be true, and not merely an attempt to silence someone who disagrees with someone else. Right?
I recently wrote a Gottesblog post called “Elders Banning Books.” In this piece, I named no one. I accused no one. Moreover, I qualified my concern openly and up front that the person who said that his elders told him not to read Aquinas is an anonymous account. And thus, I cannot verify that the account is true. Specifically, I said:
First, some disclaimers. This is an anonymous account. I cannot verify that this is true. It is possible that this assertion is entirely made up. It is also possible that it is entirely true. It is also possible that the truth lies somewhere in between. Also, I only heard one side of the controversy. It is impossible to completely judge a situation without hearing both sides. It is possible that there is a crucial piece of the puzzle that is missing. As we read in Proverbs: “The one who states his case first seems right, until the other comes and examines him.”
All that said, in my opinion, what this person has written has the ring of truth to it. I have had my own words and counsel dishonestly twisted and misrepresented. I have to say, from this layman’s wording, this does not seem to be a case like that.
So assuming that this account is accurate…
A pastor wrote and said that I (you know what’s coming next…) violated the eighth commandment by definition, precisely because I said that I could not verify the details. He said that I should remove the post (I guess he didn’t like it) and seek confession and absolution. But betraying, slandering, and hurting someone’s reputation requires a “someone.” Who is the “someone” here? Against whom did I give false testimony, and who is this “someone” that I betrayed, slandered, or hurt his reputation? To whom should I apologize?
I wrote the piece in the first place because I felt conscience-bound to do so. Pastors and elders and other laymen do abuse their authority. That is simply a true statement. It would be a lie to say that pastors and elders and other laymen never (“never? No never!”) abuse their authority. And as I said, in reading this person’s narrative about the incident he alleges, it had the ring of truth to it. Not everything that I read does. In fact, most of it doesn’t. A lot of it is pretty obviously nonsense. But in my opinion, this account did have the ring of truth. The issues I wanted to raise were: 1) Unless someone is reading porn or using false doctrine for spiritual edification, congregational leaders should not be telling people what they are allowed to read, or prohibited from reading, 2) pastors, and not lay leaders, are called by God to give pastoral care, and fellow laymen in the congregation do not have the authority to convene hearings for other laymen and compel them to attend or obey them, 3) banning Thomas Aquinas is bizarre, considering that he is quoted in the Book of Concord, has two hymns in the LSB hymnal, and is one of the foundational thinkers of western civilization.
The fact that the one raising the issue is anonymous doesn’t mean that sharing my concerns about this - or warning laymen about such things - is a “violation of the eighth commandment.”
Here is an analogy.
I remember hearing about an unnamed elderly person being scammed over the phone. The caller claimed to be a friend of the person’s grandson, and claimed that the grandson was in a Mexican jail, and that the authorities will release him right now for a $3,000 bribe. Therefore, the elderly person was instructed to wire money to a foreign account. The elderly person complied, and lost the money.
No names were mentioned. Nothing that could identify either the victim or the perpetrator was given. And to me, that kind of anonymity initially gave the whole thing an “urban legend” feel - like the oft-told tale of the guy who woke up in a third-world country hotel bathtub filled with ice to find that one of his kidneys had been removed and sold on the black market. But as it turns out, the elderly-person-being-called-to-wire-money scam is not a mere urban legend. It really happens. I have since met two people who fell for it, and have heard from several other close and reliable friends that this has happened to their relatives. Others report attempts that were thwarted. This is a real danger. And we should talk about it.
So I warn everyone about this scam. I don’t mention names. I don’t mention families. I don’t mention specifics that would betray the privacy of any involved. I’m not accusing any individual of operating such a scam. But I am saying “be careful.” That is not a “violation of the eighth commandment.” In fact, case studies often make use of fictitious names and details that have been changed. Pastors speak about casuistry with one another without betraying identities. That anonymity is actually keeping, not breaking, the eighth commandment. Notice that I’m not sharing the pastor’s name who wrote this accusation to me. It isn’t important. He is not the issue. But what is important, and what I want to write about, is the use of eighth commandment lawfare in the LCMS. I want to write about it because I think we need to talk about it. If you don’t want to talk about it, then don’t talk about it. But you may not try to bully others from talking about it. It is so common that we all make jokes about it. If we had an LCMS Bingo card, the free space in the middle would be “EIGHTH COMMANDMENT VIOLATION.”
Throwing around false accusations about the eighth commandment cheapens the actual times we all break the eighth commandment. Like an unenforced speed limit or eighteenth century law about watering a mule in the city limits, it just turns the actual law into a joke. Worse, it is an attempt to control the behavior of others because they may be writing or saying something disagreeable. It is an example of Augustine’s “libido dominanadi,” the “lust for domination.” And since we can’t be hauled into court in the LCMS and bled dry of money by having to hire a canon lawyer, the best we can do is to assault someone’s reputation and try to destroy him. I suppose I would rather the latter be done to me than the former, but it is still the same idea with a different set of weapons. In some cases, church discipline may even be used as a form of lawfare to pressure or silence a whistleblower. To say that this can never “(never? No never!”) happen in the LCMS is to deny original sin.
Moreover, Luther’s Large Catechism explanation of the eighth commandment includes a couple of disclaimers that everyone seems to forget when tossing around the eighth commandment card as it if were the right bower in a game of intimidation-into-silence euchre. They are:
1) Matters that are public (such as churches putting their services online that reveal things that ought not be done or violate our confessions and other commitments) do not require a face-to-face meeting, and in fact, “must” be dealt with publicly, not privately:
All this has been said regarding secret sins. But where the sin is quite public so that the judge and everybody know it, you can without any sin avoid him and let him go, because he has brought himself into disgrace, and you may also publicly testify concerning him. For when a matter is public in the light of day, there can be no slandering or false judging or testifying; as, when we now reprove the Pope with his doctrine, which is publicly set forth in books and proclaimed in all the world. For where the sin is public, the reproof also must be public, that every one may learn to guard against it. (LC 1:284).
2) Some vocations are not required to put the best construction on things, as their vocation involves judgment and fact finding, discipline, and the keeping of order:
Thus you see that it is summarily forbidden to speak any evil of our neighbor, however, the civil government, preachers, father and mother excepted, on the understanding that this commandment does not allow evil to go unpunished. (LC 1:274).
Pastors have the vocation to protect the sheep. If, as I believe, this narrative has the ring of truth to it, it says to me that we need to warn people about it. For banning Aquinas is to ban LSB and the Book of Concord. It is confusing, at very least. It is controlling, and spiritually unhealthy to treat people we are supposed to serve as if we were totalitarian apparatchiks. It is an attempt to bully. It is an abuse of power. And if this narrative is entirely made up and never happened, that’s great. But the issue still stands that pastors and elders are not in a position to put people under discipline for ridiculous notions about what the person reads, reviews, quotes, shares on social media, or has in his home library. That is “guilt by association,” and is itself false testimony. And “guilt by association” is an insidious practice in both church and society: an unethical way to “disappear” people whose opinions we may not like. It is what the woke left does in the realm of “cancel culture.” And many times, the eighth-commandment card is just more of the same thing with a pious-sounding Lutheran sheen. But it is really just abuse of authority and an attempt to intimate someone into silence. It is lawfare of the worst kind: not merely abusing civil law, but God’s Law. As the eighth commandment teaches us, we should not use our neighbor’s reputation as a pawn in a chess game of winning an argument or silencing the opinions and writings of others.
I want to think about this some more, but I believe that this penchant for eighth commandment lawfare is a development of the feminization of our society. We have moved away from argumentation and polemics, and we just want everyone to get along. We no longer debate ideas man to man, but we try to use passive-aggressive silencing techniques. Even our “justice” system in the LCMS is not based on the tried and true adversarial approach to get to the truth of the matter, but has become a “reconciliation” process whose ultimate goal is to quash the issues, and make everyone “play nice” by pretending an issue has been solved - just like a mom would say to her squabbling children. And like the totalitarian Left, Lutheran conversations often push more for being “nice” than getting to that which is true and protecting the flock from false prophets. For even calling someone a “false prophet” might cause some self-appointed referee to toss the yellow flag on the field and signal an “eighth commandment violation.”
And, of course, Lutheran Lawfare is laden with diabolical irony. For in falsely accusing one’s neighbor of breaking the eighth commandment, the finger pointing at one’s neighbor is countered by the three fingers pointing back at the accuser.
So beware of Lutheran Lawfare. And warn your elderly relatives and parishioners that there are scammers out there. While not accusing any specific people, don’t be afraid to warn people in generalities so that they don’t fall for something that ought not be done. And by all means, sing the beautiful communion hymns 630 and 640, both of which were written by Thomas You-Know-Who!