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7 Legal And Moral Principles To Reaffirm In The Wake Of Brett Kavanaugh’s Confirmation


I have both liberal and conservative friends on social media. Over the past weeks, these friends have publicly processed a wide range of emotions triggered by the confirmation process for Brett Kavanaugh and the accusations against him by Christine Blasey Ford, including sadness, anger, excitement, jubilation, and confusion. Even people of faith have strenuously disagreed on the issues.

For those of you who have been hiding under a rock (not a bad idea), President Trump appointed Kavanaugh to the Supreme Court as a replacement for Justice Anthony Kennedy, who retired on July 31. The president’s appointment must be confirmed by the Senate. The Senate is narrowly divided on party lines: 51 Republicans to 49 Democrats.

Before the Senate could vote on Kavanaugh’s appointment, Ford came forward with a bombshell claim. She stated that, at a high school party in 1982, Kavanaugh tried to rape her. On Sept. 27, the Senate Judiciary Committee heard testimony from Ford and Kavanaugh regarding Ford’s allegations.

Both spoke with great emotion – Ford 100 percent convinced that Kavanaugh assaulted her, Kavanaugh adamant that he did not. An expedited FBI investigation did not find corroborating evidence to support Ford’s allegations. In fact, Ford’s own witnesses denied knowledge of the alleged assault. On the evening of Oct. 6, therefore, the Senate confirmed Kavanaugh on a 50-48 vote.

A nomination to the Supreme Court is supposed to be an occasion of great dignity, where America entrusts one of the nation’s leading jurists with safekeeping our Constitution. Instead, we got a big scandalous mess. With the nation – and friendships – volatile and divided, where can we turn for guidance?

Both our legal and moral traditions provide crucial principles to guide us in such cases, principles that obviously need revisiting. As a believer in the Bible, and an attorney, I submit seven brief thoughts.

1. Sexual assault must be condemned.

We have criminal laws against sexual assault. Politics is no justification or ignoring criminal behavior. In case you were wondering, the Bible also condemns sexual assault, as, among many other things, chronicled in two stories you didn’t hear in Sunday School: Dinah the daughter of Jacob (Genesis 34); and Tamar the daughter of David (2 Samuel 13).

In both accounts, the victims are portrayed sympathetically, and the rapists are killed by avenging family members. The avengers get a slap on the wrist. Of course, the Bible has very high standards for sexual conduct generally – see, e.g., the Seventh Commandment.

2. False testimony must also be condemned.

Our system of justice depends on witnesses swearing to tell the truth. We have criminal laws against perjury, which must be upheld regardless of politics. The Bible also has high standards for truthfulness: The Ninth Commandment prohibits false testimony, and multiple other passages emphasize that God hates lies. For example, the Bible documents at least two men whose lives were ruined by false accusations: Joseph accused of rape by Potiphar’s wife (Genesis 39); and Naboth stoned on false accusations fomented by Jezebel (1 Kings 21).

3. Our perceptions and memories can be flawed.

Just because someone is sincere, and appears to believe his own testimony, does not mean he is telling the truth.  According to the prophet Jeremiah in the Bible, “The heart is deceitful above all things, and desperately sick; who can understand it?” (Jeremiah 17:9).  Also, “the one who states his case first seems right, until the other comes and examines him.” (Proverbs 18:17). In fact, sometimes the more adamantly and elaborately we argue our positions, the more likely we are hiding something, perhaps even from ourselves.

4. Any judgment must be based on evidence from reliable sources.

The danger of false testimony and flawed perceptions is real. This is why we have Rules of Evidence, which legally define what information is admissible in court (and by extension, what forms of information are considered untrustworthy). This is also why we have burdens of proof: The person bringing an accusation bears the burden of proving it.

There are other forms of evidence in addition to eyewitness testimony, including physical evidence. But without multiple, reliable evidentiary sources, the accused must be presumed innocent. The Bible also requires claims to be supported by two or three witnesses, and not just in the courtroom (Deuteronomy 19:15; Matthew 18:16; 1 Timothy 5:19).

5. Partiality must be condemned.

Equality is one of the great American values, as evidenced in our civil rights laws. We must not show partiality based on sex, social status, or political party (for the biblical counterpart, see Deuteronomy 1:17; James 2:1, 9). Neither sex should be automatically believed, or given more weight, over the other. The accused should not be automatically believed over the accuser. Having practiced law for almost two decades, I have seen an equal temptation toward embellishment on the part of both men and women, plaintiffs and defendants.

6. Evidence deteriorates over time.

We live in a fallen world, subject to decay. Unfortunately, the passage of time reduces the quality and quantity of evidence available. Our memories fade. As an attorney, I have found that witnesses have a hard time remembering events from more than two years ago, much less decades ago. In addition, the more time goes by, the harder it is to identify and locate the relevant witnesses.

This is one reason we have statutes of limitations. Assault victims need to know this hard fact of life, so that they can take it into account when deciding whether and when to come forward.

7. Our justice is limited.

There may be times that a true victim cannot prove her case, and the guilty party goes free. This is both terrible for the victim, and necessary for society. We dare not promote a justice system where innocent parties are condemned on emotion without evidence. In such cases, after we have fought the best we can, those of us with faith trust God to make all things right. “Vengeance is mine, I will repay, says the Lord.”  (Romans 12:18). Or, in the words of songwriter Sandra McCracken, “If it is not okay, then it is not the end.”

We must have courage to execute justice where the evidence demands it. At the same time, we must have the humility to refrain where the evidence is inconclusive. Applying the above principles to recent news, Kavanaugh must be presumed innocent. Confirming his appointment was the correct choice.

What happens now? For people of faith, we are called to walk gently with each other (Romans 12:18, Ephesians 4:32). If virtual bridges have burnt, let’s do what we can to rebuild. And let’s leave questions of ultimate justice where they belong, in God’s hands.