I Do/No, You Don't! The Government and Same-Sex Marriage

Sunday, 24 August 2003

President Bush is against it. Supreme Court Justice Antonin Scalia sees it as the end product of a dangerous conspiracy. Senate Majority Leader Bill Frist thinks we need a constitutional amendment to combat it. What is this dread evil that has evoked such an outcry from government officials recently? Is it terrorism? drugs? poverty? global warming (yeah, right!)? No, it's same-sex marriage. To listen to many politicians, not to mention a slew of religious leaders, same-sex marriage poses a threat as dangerous to the well-being of America as any issue in recent years. Why is it in the news so much lately? What is the proper response to the "threat" of same-sex marriage, from a theological perspective?

The reason the issue is so newsworthy at the moment is because of a U.S. Supreme Court decision in the case of Lawrence v. Texas on 26 June 2003. At stake was a Texas anti-sodomy law. Sodomy is defined as any sexual contact between consenting adults other than a man and woman engaging in vaginal sex. In a 1986 case from Georgia, Bowers v. Hardwick, the Supreme Court had ruled that states had the right to restrict certain types of sexual behavior between consenting adults. The implications of the 1986 decision were far-reaching, making potential criminals of vast numbers--likely a majority--of the adult population in those states with such laws on the books. (It is telling that the laws in these states were apparently only enforced to limit homosexual acts, not the "sodomistic" acts of heterosexuals. Some of the state laws were specifically anti-homosexual.) When the Supreme Court revisited its earlier decision, it said that the earlier court erred in deciding Bowers and that all such laws violate the Due Process Clause of the Fifth and Fourteenth Amendments. The unexpectedly broad ruling sent shock waves through the hearts of those firmly opposed to any official sanction of same-sex marriages.

The theological issues related to same-sex marriages revolve around two poles: religious liberty and morality. I will defer the discussion on the morality of same-sex marriages to another time. In this column I want to deal only with the religious liberty aspects of the issue. The central question, then, is this: based on the biblical principle of religious liberty, and informed by the First Amendment to the U.S. Constitution, what is the proper way for the U.S. government to approach the issue of same-sex marriages?

First, a refresher course. The First Amendment says, in regard to religious freedom:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.
The first clause (the Establishment Clause) says that there can be no official government religion. Thus, even if a majority of U.S. citizens identify themselves as Christian, Christianity is not the official religion, any more than Judaism, Islam, or atheism are. The second clause (the Free Exercise Clause) states that individuals and religious organizations are free to practice their beliefs without interference from the government. There are exceptions to the free exercise clause, of course, the primary one being that one person's religion cannot infringe on the rights of another person to life, liberty, or the free exercise of his or her own religion. The standard is very high, however, and it led one of the Constitution's architects, Thomas Jefferson, to describe the First Amendment as erecting a wall of separation between church and state, an analogy that remains useful today.

Based on this widely accepted analysis of the First Amendment, what role does the government have in defining marriage? Is marriage a religious institution, or is it a legal institution? If the former, then its forms and rituals are immune from government scrutiny. If the latter, then the government has a right to set standards, just as it may in any contract between individuals. The fact of the matter is that marriage is both a religious and a legal institution, and this combination lies at the root of the turmoil.

That the most vociferous opponents of legalized same-sex marriage recognize the religious as well as the legal aspects of marriage is evident from their comments. Here is a sample of comments from opponents of same-sex marriage:

"I very much feel that marriage is a sacrament, and that sacrament should extend, and can extend, to that legal entity of a union between what has traditionally in our western values been defined as between a man and a woman, so I would support the amendment [a proposed amendment to the U.S. Constitution defining marriage as pertaining to one man and one woman]" (Sen. Bill Frist, R-TN, Senate Majority Leader).
Note Frist's use of the religious term "sacrament," defined by Merriam-Webster as "A Christian rite that is believed to have been ordained by Christ and that is held to be a means of divine grace or to be a sign or symbol of a spiritual reality." In the Roman Catholic Church, for example, marriage is considered to be one of the seven sacraments. While most Protestants wouldn't describe marriage as a sacrament in the sense of a means of divine grace, most would agree that it is a sign or a symbol of spiritual reality, and of course, most other religious traditions similarly place a high value on marriage, seeing it as a covenant between two people, or perhaps between two people and the spiritual community. Marriage may indeed be a sacrament, but if so, the sacramental nature of marriage is a religious concept, not a legal one. Those seeking to outlaw same-sex marriages cannot do so on the basis of the religious nature of marriage.
"I believe in the sanctity of marriage. I believe a marriage is between a man and a woman. And I think we ought to codify that one way or the other" (Pres. George W. Bush).
Bush uses a different religious term, "sanctity," to describe marriage. Another word for sanctity is holiness. Sanctity implies a proximity to the divine, or a dedication to God. I agree that marriage should a sacred institution. However, since that is a religious principle, not a legal one, it can hold no sway in discussions of the role of government in defining marriage.
"Today's opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct" (Justice Antonin Scalia, U.S. Supreme Court).
Scalia, whom Bush would likely appoint Chief Justice in the event of current Chief Justice Rehnquist's retirement, studiously avoids obvious religious language in his dissenting opinion from Lawrence. His belief that the Court's majority opinion is shaped by a conspiracy that traces back to homosexual activists is a little scary, but beside the point in this connection. More significant is his recognition that the sodomy laws were based on "the moral opprobrium that has traditionally attached to homosexual conduct." He relies on both morality and tradition for the rationale behind his dissent. It is true that morality is possible apart from any religious tradition, but it is often bound to the beliefs of a religious system. In the case of homosexuality, it is demonstrable that there are traditions that both affirm and reject homosexuality as an acceptable form of behavior. It is primarily the religious traditions, especially those of the major Western religions, that most strongly oppose homosexuality. The beliefs of adherents of particular religious traditions should not trump the liberty of individuals to behave in ways that they deem morally right (this is the larger Court's Due Process argument). By Scalia's logic, because there was (and often still is) a moral opprobrium to mixed-race marriages, particularly in the South, they may be outlawed. Because there was (and often still is) a moral opprobrium to mixing the races in neighborhoods, particularly in the South, discrimination in housing may be legal. Few would argue that such obvious violations of civil rights have any legal justification, even if a particular religious sect approved of them. The fact that the religious "sect" that opposes same-sex marriage is the largest religion in America is irrelevant, if the First Amendment is taken seriously. (Of course, not all Christian groups oppose same-sex marriage. Some have already approved it as acceptable, and it is a hotly debated topic in many other traditions.)

"It is time for this God-hating branch of government to be taken to task by the Church of Jesus Christ. The Supreme Court of the United States of America needs to be reminded that it is not supreme. There is a court before whom the knee of every Justice who ever sat on the Supreme Court will bow, and their tongues will confess that Jesus Christ is Lord."

. . .

"The Supreme Court has shaken its fist in the face of Almighty God today, leaving one to wonder what our nation is coming to. How can we possibly ask God to bless America when we throw His Word and His Son out the window for new images shaped like Asherah poles, and golden calves" (Rev. Flip Benham, Director of Operation Rescue).

These comments by Rev. Flip Benham are included only as a sample of the rhetoric that some religious leaders have used concerning the Supreme Court decision in Lawrence. Because many of these leaders do not believe in the separation of church and state, they attempt to hold the high court to the religious standards of a particular religion, in this case, a right-wing interpretation of Christianity. From the standpoint of those who believe strongly in religious liberty and its corollary, the separation of church and state, such comments only support the case for recognizing the sacred/secular entanglement that is possible on an issue such as same-sex marriage.

It is clear, then, that the institution of marriage has religious components. Religious components include such ideas as commitment, covenant, or even sacrament. Marriage is often seen as a sacred, divinely ordained state. As a religious institution, religious organizations have every right to define for their followers the parameters of marriage. Churches, temples, mosques, and synagogues may limit marriage to a covenant entered into by one man and one woman. They may prohibit divorced people from remarrying. They may place limits on the age, religious affiliation, or even race of the participants. All these limitations are granted to religious institutions by the First Amendment's Free Exercise Clause.

But what about the legal components of marriage? Does the state have a stake in defining marriage? Yes it does, if it does not do so in a way that discriminates or infringes on the liberty guaranteed by the First, Fifth, and Fourteenth Amendments to the U.S. Constitution. The state has an interest in defining marriage for the purposes of collecting income taxes, determining the disposition of estates, and adjudicating parental rights cases, among many others. One of the most important state roles related to marriage is to ensure non-discrimination in the application of laws by subordinate legal entities and by other groups, such as insurance companies and pension programs. The state may not consider the tenets of a particular religious organization when arriving at its definitions of marriage. For the state, marriage is not a sacrament, nor is it sacred; these terms are irrelevant as far as the state is concerned. When it comes to religious niceties, the state should be purposely agnostic.

Based on this analysis of the role of the state in regard to same-sex marriages from a religious liberty perspective, the state (i.e., both state governments and the federal government) should have no problem sanctioning same-sex marriage. To oppose it would violate the First, Fifth, and Fourteenth Amendments to the U.S. Constitution. Furthermore, once a single state--perhaps Massachusetts or Hawaii--passes a law recognizing the validity of same-sex marriages, other states are obligated to recognize the legitimacy of those marriages under the Full Faith and Credit Clause of Article 4, Section 1, of the U.S. Constitution.

Whether same-sex marriages need to be called marriages by the state is another matter. If it is the opinion of a legal body that the term "marriage" carries with it too much religious baggage, another term, such as "civil union," may be employed. However, and this is an important point, the state may not call a cohabitation contract between a man and a woman "marriage" while referring to a similar contract between two men as "civil union." Either both are marriages or both are civil unions.

It is noteworthy that marriage ceremonies in the United States, the home of the separation of church and state, often blur the boundaries in ways that marriage ceremonies in other countries do not. In the U.S., couples are married when a minister pronounces them married (though, of course, a justice of the peace can do the same thing). In other countries, the legal proceeding is often separate from the religious ceremony. In a wedding I attended in Mexico, the bride and groom arrived at the church already legally married by a judge an hour or so beforehand. In South Africa, after the religious service, the bride and groom had to sign a legal document making their marriage official.

Americans need to recognize that marriage is an agreement between individuals in which both the church and the state have an interest. Those interests are not the same, however. The interest of the church or other religious organization is to establish a moral, committed home based on religious principles agreed to voluntarily by those involved. The interest of the state is to ensure that federal and state laws are followed (e.g., sham marriages for the purposes of obtaining legalized residency are considered invalid) and that the parties will not be discriminated against in future legal proceedings. Same-sex marriage may violate the sensibilities of a religious organization. It should not bother the state.

© Copyright 2003, Progressive Theology

Progressive Theology