Now the idea that life and death are set before us has deep roots in our Judeo – Christian tradition. From the perspective of this tradition, the idea of a choice between life and death goes back to the garden. But perhaps we can see this idea most vividly articulated in the OT book of Deuteronomy. I am going to point us to a biblical text to clarify how deep this notion of cultures of life and death run in the Western intellectual tradition. To show as it were that when we raise this issue we do so in continuity with the system of values that lies behind our laws, our culture, and our system of Government.

So then in Deuteronomy 30, starting in verse 15, God the Father, through Moses, says, “See, I have set before you today life and good, death and evil, in that I command you today to love the Lord your God, to walk in His ways, and to keep his commandments, His statutes, and His Judgments, that you may live and multiply …But if your heart turns away …. I announce to you today that you shall surely perish… I call heaven and earth as witnesses today against you that I have set before you life and death, blessing and cursing, therefore choose life that both you and your descendents may live.”

Now when we quote a text as old as Deuteronomy, it is fair to say that some aspects of the culture of death have been with us always, they are simply part of what it means to be human in a fallen world. But there is also a more modern aspect to this issue, an aspect that makes the problem we confront especially pressing for we moderns.

Since at least the French Revolution in the late 18th century there has been a revolution in Western thought regarding the value and dignity of the human person. A concept of social utility has replaced the notion of inherent human dignity. In our own day the losers in this ethical sea change have been the elderly, the poor, the disabled and politically marginalized. None of these pass the utility test. Those who are unborn, infirm and terminally ill have no voice, unless we provide it.

As we tinker with the beginning, the end and even the intimate cell structure of life, we tinker with our own identity as a free nation dedicated to the dignity of the human person. And I want to say something bold here, that is that when American political life becomes an experiment on people rather than for and by them, it will no longer be worth conducting. We are arguably moving closer to that day.

CS Lewis saw this trend and noted in his book the Abolition of man, "For the power of Man to make himself what he pleases means, as we have seen, the power of some men to make other men what they please.” In abortion, euthanasia, human cloning and a host of other issues we see Lewis’s prophetic voice ringing true. The power of some men and women over others has trumped the concept of human dignity.

Yet, we can take courage from the fact that at a very basic level, our American Polity was founded on principles at odds with the culture of death, principles that we can reclaim and use as tools in the construction of a culture of life. At our best Americans believe that universal understandings of human dignity and truth are "written on the human heart." America's founders also believed this to be true. In 1776 John Dickinson, one of my favorite founding fathers, affirmed: "Our liberties do not come from charters for these are only the declaration of pre-existing rights. They do not depend on parchments or seals, but come from the king of kings and the Lord of all the earth." This notion, that our dignity as persons is not subject to the winds of political change, but finds its roots in who we are as human beings is a great strength of our political tradition. By standing in continuity with this principle we stand in continuity with a culture of life.

Now having said all of this let me take a stab at approaching this question of what exactly constitute the culture of death from another direction. Many of you are probably familiar with Dostoevsky, the 19th century Russian novelist, his body of work stands in my mind as one of the great defenses of the culture of life, a defense made by staring unblinkingly at the culture of death and what it had done to Russian society. In any event in his work The Brothers Karamazov there is this line, “For the mystery of man’s being is not only in living, but in what one lives for. Without a firm idea of what he lives for, man will not consent to live and will sooner destroy himself than remain on earth.” Ladies and gentlemen I would submit to you that we are living in an age where many, especially among the so called elites, have no idea what they are living for, and as such are embracing a culture of death.

The concept of humility set before us by God made man doubtful of himself and his own efforts, and thus inclined to work all the more diligently because of this awareness of our limits aware of the preciousness of life. But humility or reticence regarding truth itself makes man doubtful about his very purpose in the world, and as such feeds the culture of death.

The perniciousness of moral relativism is that it sets before us the prospect of a sort of intellectual suicide, perpetrated by one generation on the next. Just as one generation could prevent the existence of the next generation if we all decided to jump off a cliff, so we can prevent the intellectual development of the next generation by teaching that there is no ultimate purpose of, or validity to, human thought. And it is this very tendency that is encouraged by the false and inverted humility of our age.

A rejection of objective truth does not free our minds by opening up previously unknown possibilities; rather it has the opposite effect of producing a downward spiral of skeptical despair that ends in making all thought meaningless. Now this is bad enough in and of itself, but it too has further and more dire consequences. For if truth is relative and unknowable then where can human dignity be grounded.

Now at this point I’d like to take a step back and ask what is the role of government in all of this, for in some ways that role is limited. The first principle of proper government, as suggested by Russell. Kirk is belief in an enduring moral order. This idea encompasses several notions: a) that human nature is constant; b) that moral truths are permanent; c) that all social questions are at heart moral questions; that, to put it provocatively, not only can we legislate morality, but properly understood we legislate nothing but morality.

This first principle is perhaps the most important. It marks out the boundary between him and those who believe that the temporal order is the only order, that material needs are the only needs, and that they may do as they wish with human patrimony.

Now all of this may seem a bit removed from the life of practical politics in the State of Kansas; but I would suggest to you that it is not. Indeed these ideas stand at the center of what I take to be the most pressing issue confronting our state at this moment, the issue of judicial activism. Now many of you are familiar with judicial activism in Kansas in the context of our Supreme Courts School finance decisions, in which the Court has usurped the power of the legislature over issues of appropriations. Article 2 of our State constitution (the section on legislative authority) currently provides that “No money shall be drawn from the treasury except in pursuance of a specific appropriation made by law.” The Court has ignored this provision and in fact order the legislature to appropriate a specific dollar amount for K-12 education. (I proposed a constitutional amendment would have added, along with some other verbiage, that “The executive and judicial branches shall have no authority to direct the legislature to make an appropriation of money.”)

Now in and of itself this decision may seem to have little if anything to do with the culture of life, but let me try to make the connection for you.

The Kansas Supreme Court’s decision in Montoy was contrary to the basic tenants of representative democracy. In our system the Legislature alone may spend the peoples’ money, because it is the Legislature that is accountable to them. The confinement of appropriations to the legislative branch under our system of government was not random. It reflected our national ideal that the power of appropriation must be under the control of those whose money is being spent. This basic idea was at the very core of why our country came into being in the first place.

I proposed my constitutional amendment over the summer, not out of a love for innovation and change, but out of the belief that if we did not stand up to Montoy we would be governed directly by Courts as we never have been before. It was my belief, even then, that we face Court intent upon making a revolution, by subverting self government via judicial fiat.

I further believed that if the legislature did not stand up to the Court in this regard it would send a very dangerous signal that would be interpreted by the Court as a license for them to pursue their political agenda in other areas.

Little did I know how quickly the Court would prove me correct. This fall in the case of State v. Limon the Supreme Court of Kansas ruled, in effect, that traditional morality is irrational. Specifically, the Court ruled that, moral disapproval of a behavior cannot be a legitimate government interest, because moral disapproval can not meet the rational basis test under the equal protection clause of the U.S. Constitution.

That having been said, taking the Court at its word when it says that, “moral disapproval of a group cannot be a legitimate government interest” would be to give them too much credit. For of course this is not what the Court really means. Rather, the Court is making a bold statement about judicial power, about its right to substitute its own moral preferences for those of the people as expressed via their elected representatives. While the Court may not see moral discernment as a proper legislative function, they certainly express no qualms about using their own powers of moral discernment to arrive at judicial rulings. Indeed in the Limon case itself the Court offers us a great deal of moral judgment on issues such as the appropriate sexual development of children, the morality of sexual relationships between children and adults, and the promotion of parental responsibility and procreation. In each of these cases the Court is perfectly willing to offer its two cents worth on the values appropriate to these areas.

In understanding the importance of the Limon decision it is crucial to recognize the manner in which Court has signaled it will view the equal protection clause going forward. It will view it in a fashion dripping with its own moral preferences. Indeed, in dicta, the Court expressed its agreement with the proposition that “the promotion of majoritarian sexual morality is not even a legitimate state interest and that criminal legislation on matters such as fornication, bigamy, adultery, adult incest, bestiality, and obscenity cannot survive rational-basis review.” (No this is not my spin on the Courts ruling, it is a direct quote from the Kansas Supreme Court opinion). In making this statement the Kansas Supreme Court may well be the first such court in the county to indicate agreement with Justice Scalia’s warning regarding how far reaching the Lawrence v. Texas decision on decriminalization of sodomy really was. The difference being of course that what Justice Scalia presents as an outrage the Kansas Supreme Court embraces with warm affection.

For those who worked so hard to promote the marriage amendment in Kansas this has dire implications. The reasoning that invalidated Mr. Limon’s sentence could certainly be put to work to invalidate the prohibition on same sex marriage in the Kansas Constitution. As a strong supporter of that amendment my core argument was that: “once we determine that marriage can not be denied to persons as long as they claim an abiding love and commitment for one another, then we have lost the ability, in principle, to impose any limits at all on the definition of marriage. It is axiomatic that a definition so broad as to encompass everything means nothing. It is for this reason, among other, that the recognition of homosexual marriage shatters the very meaning of marriage at its most basic level.” This argument and most of the others that I heard advanced for the marriage amendment would certainly be put to test by a legal standard that defines making moral distinctions between groups of persons as an illegitimate legislative purpose.

In conclusion let me say that I agree with Justice Scalia who said "in a truly democratic society - or at least the one in America - one way or another the people will have their say on significant social policy. If judges are routinely providing the society's definitive answers to moral questions on which there is ample room for debate ... then judges will be made politically accountable." The current situation in Kansas, where justices increasingly act as policy makers, while attempting to hide behind a veneer of judicial independence in order to avoid political accountability is not sustainable.

With all of this in mind I would suggest that the battle over judicial activism is now the front line in the battle between a culture of life and the culture of death. A Court intent on pursuing its own policy objectives and unrestrained by a legislature that lacks the courage to oppose them will, over time, undermine the notions that human nature is constant; that moral truths are permanent, that all social questions are at heart moral questions. And in so doing such a court could conceivably bring to naught much of the work that people like you are currently engaged in to advance the culture of life.

I’d be happy to attempt to answer some questions, and in doing so touch on what we can do in light of the concerns I’ve outlined above.