Moral vs. Legal Imperatives and Marriage Equality

same-sex-marriage2Supreme Court justices seemed skeptical of creating a new federal right to same-sex marriage as they grilled lawyers this morning in a potentially landmark case over California’s ban on gay marriages.

As the politics change by the day, the court heard a case — Proposition 8 — that could drastically change how states and the federal government approach one of the touchiest social issues of the past decade.

The justices today challenged lawyers on both sides on common points of contention that arise whenever gay marriage is debated.

-Chris Good, Terry Moran, Ariane DeVogue, and Sarah Parnass
“Supreme Court Justices Struggle with Federal Right to Gay Marriage”
ABC News

I shouldn’t do this. I shouldn’t write one single word about this subject. I’m going to get in trouble with just about everyone when they read this. My Pastor reads my blog. My Mother reads my blog. Boy, am I in for it.

Then why I’m I writing this? I’m tempted to write it because the news media is just plain shoving it down everyone’s throat today. I can’t get away from it. Even other religious blogs are demanding Christians support same-sex marriage. But then, this is really is big news, regardless of which side of the fence you’re on. It will affect not only the state of “marriage equality” in California as related to Prop. 8, but potentially the “rights” of same-sex couples to become married in all fifty states (I put “rights” in quotes because of the question, can something be a “right” that hasn’t been established as such yet? But I digress).

But that’s not the reason I’m writing this. I’m a Christian. I’m kind of unconventional, but my general stance on homosexuality is that the Bible doesn’t support it. However, like most Christians, I can’t always immediately point to my source data in the Bible. So I guess I’d better go looking for it.

Thanks to Google, the search is brief, if not particularly focused. I land on a site called ChristianBibleReference.org and an article called, “What Does the Bible say about Homosexuality?”

I won’t quote everything, but they provide a handy bullet point list for reference:

  • 2 refer to rape (Genesis 19:5, Judges 19:22)
  • 5 refer to cult prostitution (Deuteronomy 23:17-18, 1 Kings 14:23-24, 15:12-13, 22:46, 2 Kings 23:6-8)
  • 1 refers to prostitution and pederasty (1 Corinthians 6:9-10)
  • 4 are nonspecific (Leviticus 18:21-22, Leviticus 20:13, Romans 1:26-27, 1 Timothy 1:8-10)

OK, let’s consider a few things. Any references in the Torah or the entire Tanakh (Old Testament) that specifically prohibit homosexual behavior are within the context of the laws and statutes that apply to the Children of Israel. While God may or may not disdain homosexual behavior for all human beings in general, the Tanakh prohibitions don’t apply to all human beings in general. They apply (there may be exceptions, but for the most part) to the Jewish people; the inheritors of the Sinai covenant.

So if you’re not part of that covenant by birth or conversion, then those laws don’t apply to you.

Stay with me. I’m just getting started.

What about the New Testament?

Therefore God gave them up in the lusts of their hearts to impurity, to the dishonoring of their bodies among themselves, because they exchanged the truth about God for a lie and worshiped and served the creature rather than the Creator, who is blessed forever! Amen.

For this reason God gave them up to dishonorable passions. For their women exchanged natural relations for those that are contrary to nature; and the men likewise gave up natural relations with women and were consumed with passion for one another, men committing shameless acts with men and receiving in themselves the due penalty for their error.

Romans 1:24-27

Now we know that the law is good, if one uses it lawfully, understanding this, that the law is not laid down for the just but for the lawless and disobedient, for the ungodly and sinners, for the unholy and profane, for those who strike their fathers and mothers, for murderers, the sexually immoral, men who practice homosexuality, enslavers, liars, perjurers, and whatever else is contrary to sound doctrine,

1 Timothy 1:8-10

Christian-Campus-GayThere are other scriptures that address sexual immorality (which in some cases may or may not be specific to homosexuality) in the New Testament, but these are two of the most “damning.”

But in my brief Google search, I did find a blogger who wrote an article called Why The Bible DOES NOT Forbid Homosexuality. He provided a defense based on Romans 1 and basically ignored 1 Timothy 1 or many other NT scriptures, relying on statements citing other sources such as the following:

Homosexuality, like heterosexuality, is a sexual orientation. Sexual orientation deals with a person’s sexual attraction to another person’s sexual organs.

In first century, Roman imperial culture, homosexual sex was a fairly common practice but only as a specific, social function.

The blog author tried to link the latter quote with the “neither male nor female” portion of Galatians 3:28 but bottom line, I wasn’t convinced. He was heavy on history and social commentary but light on providing a clear illustration of how the Bible was either neutral on the topic or even “pro-gay.” The blog post is almost a year old and has 67 responding comments, all of which I have not read. I’m not interested in joining that particular debate (which ended last November with the last comment) and it’s certainly not the point of what I’m writing today.

The general moral and ethical structure of Christianity is taken largely from Judaism. How can it not, since Christianity has grown and evolved from the first century Jewish sect known as “the Way?” Therefore, I wouldn’t expect Jesus, Paul, or the rest of the apostles to teach moral and ethical principles that differed significantly from their “source material,” the Torah. Therefore, it’s unlikely that Jesus and his followers would have taught a social/sexual practice that was different and specifically not one that reversed something that appears quite plain in the Torah. Why would they?

Of course, many people are quick to point out that Christianity doesn’t follow the kosher laws either and that Jacob had twelve wives, and Solomon had more wives and concubines than you could shake a proverbial stick at, so can Christianity reasonably reach back into the Torah for its binding principles?

It gets complicated in the explanation, but Jesus was specific in saying the following:

And Pharisees came up to him and tested him by asking, “Is it lawful to divorce one’s wife for any cause?” He answered, “Have you not read that he who created them from the beginning made them male and female, and said, ‘Therefore a man shall leave his father and his mother and hold fast to his wife, and the two shall become one flesh’? So they are no longer two but one flesh. What therefore God has joined together, let not man separate.”

Matthew 19:3-6

So Jesus is defining marriage specifically between a man and woman and not allowing any “wiggle room” for two men or two women. Yes, he was talking to a Jewish audience, but this is one principle that has been extended to the non-Jewish disciples of the Master (i.e. Christians). I know there are Christians and Jews who hold religious beliefs that accept homosexual behavior and include support of “marriage equality,” but we need to be careful not to mix and match principles of faith with political correctness or even secular law.

Which brings me to a couple of points, one of which I mentioned above. If the Torah forbids homosexual behavior, it does so within the context of the covenants that apply to the Jewish people, specifically the Sinai covenant. If you are not Jewish, then the Torah doesn’t apply to you since you’re not a covenant member. End of story.

abraham-covenant-starsChristianity has a covenant relationship with God based on a portion of the Abrahamic Covenant (Genesis 12:1-3) which was extended by the New Covenant (Jeremiah 31 and Ezekiel 36) and then applied by the Messiah in the Gospels (see Luke 22:17-20 for instance). Unlike Jews, Christians are not born into a covenant relationship with God. We must choose to become Christians. Once we do, then we are bound by the covenant and all that it contains, which traditionally includes a prohibition against homosexual behavior.

But if you aren’t Jewish and you aren’t a Christian, you aren’t a covenant member and therefore, the “rules” don’t apply to you. It’s arguable that the Noahide Laws, which at least Orthodox Judaism considers binding on literally everyone, prohibits homosexuality as one of the forbidden relationships, but that definition is set by religious Judaism and if you don’t buy into that, you aren’t going to feel too “bound” just because you’re a human being.

(In the end, God has the right to judge everyone, covenant member or not, but that’s not the point of today’s missive.)

What I’m getting at is that if a person isn’t a recognized member of a covenant relationship with God, can you as a religious Jew or a Christian actually make them responsible for upholding moral and ethical behaviors defined by your beliefs? If you consider homosexual behavior a sin and there are secular gay people in the world, how are they any better or worse than say, a secular bank robber or (heterosexual) adulterer?

I suppose gay readers or readers who support gay rights might be chafing at this point in my narrative, but I’m speaking to a religious audience from within that context. I understand you do not equate a man loving another man with a man robbing a bank or a man cheating on his wife.

Now to my other point.

Whatever the Supreme Court does or doesn’t do has nothing to do with your faith.

A number of important laws in our country, and in most countries, more or less mirror what we read in the Bible. The Bible has a commandment against murder. Generally, murder is illegal in this country. The Bible is against stealing. We have laws against stealing. But we also have a lot of laws that range from morally ambiguous to just plain crazy from a Biblical point of view. What do you do about laws permitting marijuana use in some states but not others? What do you do about the legality of heterosexual marriage in general when the first man and woman in Genesis presumably weren’t married? How the U.S. Supreme Court interprets the Constitution today would probably have driven the Founding Fathers insane, so how can we reconcile the Bible to laws in the United States of America in the 21st century?

Religious Jews and Christians historically have lived in nations where the penal and civil laws did not completely (or sometimes in any sense) match up with the religious “laws” of Jews and Christians. Where do we get the idea that the Supreme Court has to interpret the Constitution in a way that makes us feel comfortable and is consistent with our definition of marriage?

My personal opinion is that it is only a matter of time until our nation permits homosexual marriage in all fifty states (whether individual states want to permit it or not). As an American citizen, I have feelings about that, but as a Christian, can I impose my morality on the law of the land? Yes, the law of the land imposes itself on me because I’m an American citizen, but if the law permits a man and a woman to live together and have a sexual relationship, and that is also against my religious beliefs, why am I not protesting or complaining about that?

I know someone is going to mention abortion which is A) legal, and B) generally against Christian moral principles, but if you believe life is sacred and you believe life begins at conception or at some point before 10 or 20 weeks gestation, then you also believe that aborting an unborn child is killing a baby.

Another “unpopular” subject to be sure but it is a subject for another time.

same-sex-marriage4If the Supreme Court rules that it is unconstitutional for the State of California (and this decision will affect all other states ultimately) to pass a law forbidding same-sex couples from marrying, what am I as a Christian supposed to do about it? Can I hold the world around me to the same moral standards to which I hold myself?

I know I’ve probably upset everyone who has managed to make it through this lengthy article. It was not my intent and I didn’t write this just to be a pest. I’m trying to process this information within myself (which is why I write most of my blogs) and I’m trying to present an alternate point of view, one that doesn’t say “all gays are good” or “all gays are bad” either because that’s how I may feel on a visceral level or because I believe that’s what the Bible is saying to me.

I have a responsibility to God to live my life in a manner consistent with my faith and my beliefs. If my brother or sister in faith appears to be stumbling, I believe I have a responsibility to gently point out that they may have a problem and to offer to help them.

But if someone outside the faith appears to be having a moral problem, what is my responsibility (however, if I see, for instance, a secular man beating his child, the state of his faith is irrelevant and I do have a responsibility to protect the innocent)? If my nation is passing laws that appear to have a moral problem but otherwise aren’t the equivalent of making it legal for adults to beat children, what is my responsibility?

I’m not an attorney, but I have racked my brain trying to look at the marriage equality issue from a strictly legal perspective, temporarily putting aside both my faith and my visceral response.

I can’t find a legal reason to forbid such unions, regardless of my moral stance. So now what do I do?

Let the “hate mail” begin.

14 thoughts on “Moral vs. Legal Imperatives and Marriage Equality”

  1. You raised the question of comparative value between homosexuality, heterosexual adultery and bank robbery, and their relative legality or illegality. I would suggest that this entire idea of comparison is misleading. It doesn’t really matter whether one of these is any worse than any other. The significant question is what impact any given practice may have on society in general. American law is not based on religious values. An action is not illegal because some religion condemns it. An action is illegal in the USA because it detrimentally affects life, liberty, or the pursuit of well-being (i.e., “happiness” as originally understood). American law has long respected Judeo-Christian morality in such matters because it represents a very long history of human experience with actions that are beneficial or detrimental to general human societies. Another modern approach to morality that may inform law is the “Kantian Imperative” defined by the philosopher Emanuel Kant. He proposed that one might evaluate a proposed action by envisioning its consequences if they were amplified by being enacted by everyone in a given society. Thus, it becomes quickly obvious that behaviors like violence, murder, robbery, and even careless heterosexuality on a wide scale present problems that are detrimental to any sort of humanly comfortable society, and they even may threaten its very survival. If one examines the concept of homosexuality with such a test, it becomes obvious that if such behavior became universal the human race would become extinct in a single generation. Thus the concept is inherently misanthropic and not something that deserves legal sanction or authorization. It is also inherently Narcissistic, because it turns its attention back upon its own gender type and fails to embrace the “other” form of our natural bi-gendered humanity. However, mere selfishness is not grounds for legal prohibition. The term “marriage equality” is false and misleading, because there is no equal comparison between the barren union of two males or two females and the union of male and female that can produce offspring to continue and maintain societal existence. Much of American jurisprudence is based on concepts of “natural law”. Homosexuality is contrary to nature, because it is contrary to species self-preservation, hence it does not fit well into such a legal system. It does not particularly affirm the value of “life”, it may affirm the value of “liberty” (though it would deny the liberty of those who oppose it as dangerous), and its contribution to anyone’s well-being is highly questionable (though some would say it seems to support a kind “happiness” that is unrelated to the meaning of the fundamental American or natural human right).

    These seem to me the fundamental legal reasons to deny creating any sort of legal authorization for homosexual behavior. As an individual private behavior, it is protected already by existing general legal principles. Marriage, however, is a public behavior with societal consequences, in which society may reasonably take an interest and may constrain or encourage legally. Heterosexual marriage offers positive benefits to society. Homosexual unions do not and thus do not merit any legal encouragement. In fact, there exists historical evidence that homosexuality is detrimental to the continuance of human society and its functional interrelationships.

    American values do “proclaim liberty” (as do Jewish values, as the phrase appears prominently in Torah), and so do I, but neither they nor I proclaim or recommend unfettered license or irresponsibility to pursue destructive behavior.

  2. As always, thank you for your well considered and thorough response, PL. I was looking at this issue from a very simple and restrictive framework.

    1. The matter of the constitutionality of two same-sex individuals wanting to enter into a legal marriage contract with each other has come before the U.S. Supreme Court.

    2. Generally, religious people oppose same-sex marriage, not for legally specific reasons but rather, because of their interpretation of their holy scriptures.

    Can the two have anything to do with one another in a court of law? That is, could I go before the court as an attorney and reasonably expect to support Prop. 8, which bans same-sex marriages in the state of California, based on how I understand my faith?

    Logically, the answer is “no,” thus religious people cannot appeal to the court to support Prop. 8 on that basis.

    You do raise matters that could be presented to the court, based upon the (presumed) long-term consequences to the nation should same-sex marriage be granted equal status with heterosexual marriage, but based on a tweet from SCOTUSblog on twitter, which I read at patheos.com, it doesn’t seem like the court is going to either support or overturn the original verdict.

    My point is that if we want to appeal to the Supreme Court to make some sort of decision, we have to do so within the confines of law rather than faith or emotion or anything else. I realize that this is a highly emotionally charged topic, but at least in theory, the court cannot consider how we “feel” as the primary method of interpreting the constitutionality of Prop. 8 and thus, the legality of banning same-sex marriage.

  3. Very good article James,

    Christians don’t seem to recognise the illigitimacy of projecting Godly standards upon a secular community. I can’t imagine the early church getting worked into a panic by Romans introducing unGodly laws.

    But homosexuality is an easy issue for Christians to highlight considering most Christians wouldn’t be personally tempted by homosexual activity. It’s not so common for Christians to be equally vocal about covetousness (greed), adultery (lustful thoughts) and murder (hateful thoughts towards another).

  4. I can’t imagine the early church getting worked into a panic by Romans introducing unGodly laws.

    Based on various quotes from Paul’s letters, he seemed to be concerned about idol worship which is understandable since many formerly pagan Gentiles were entering the movement and bringing in some of their questionable behaviors, including sexual behaviors. While Paul wasn’t out to reform the Roman Empire, once formerly-pagan Gentiles entered the Way, they became subject to the standards set out by the teachings of Christ, which were largely based on the older Jewish scriptures.

    The problem we have now in some religious institutions is probably the problem some of Paul’s churches in the diaspora had: the people attending wanted to have it both ways and Paul told them that practices connected to idol worship are incompatible with the standards of God.

  5. HI James, my mention of “Romans” was intended to mean the Roman government of the day. The early church didn’t concern itself with what laws Rome may or may not pass. They concerned themselves with what behaviour may be introduced into the church.

    Paul’s letters were related to correcting the church, not with correcting secular Roman society.

  6. HI James, my mention of “Romans” was intended to mean the Roman government of the day. The early church didn’t concern itself with what laws Rome may or may not pass. They concerned themselves with what behaviour may be introduced into the church.

    That’s what I thought I said in my other comment to you. No, Paul wasn’t trying to “fix” the Empire, but once someone accepted discipleship under Jesus, they were expected to conform to those standards.

  7. Discussions of Rav Shaul’s lack of advice about attempting to effect any change to the Roman legal environment or its administrative policies do not apply to the situation in the USA or to any democratic legal environment. People of moral motivation in such environments have a privilege that did not exist in the first century CE, and therefore they have a responsibility and a moral obligation to use that privilege to influence their society insofar as they can. In democratic societies individuals are not merely subjects of their government — they are part of that government and are responsible to shape its policies (albeit constrained by the degree of their ability to participate). In this case, the justification for appealing to the Supreme Court is that a lower court has chosen to overturn the expressed will of the people and their elected representatives. Thus a small group is using legal manipulation to subvert justice and democratic government, and it should be the responsibility of the highest court in the land to uphold the original decision of the diverse represented majority enacted by the balanced elective process in which they participate. That is the essence of the Constitution which the Supreme Court is responsible to interpret and uphold. As I said in my previous response, American law is not based on religious values as such. It merely supports such values for a broader spectrum of reasons. Since the Supreme Court must consider arguments from competing perspectives in order to evaluate the constitutional issues invoked by the controversy over a democratically produced legal policy, it becomes the responsibilty of those whose values justify the policy to reiterate them for the court in defense of it.

    It is true that the behavior of individual citizens can be morally superior to the governmental environment in which they perform (as it was for Rav Yeshua’s followers and Torah-observant Jews in general under Roman occupation). Often, governments, even oppressive ones, recognize and permit beneficial public morality because it tends to preserve order and reduce the effort required to maintain governmental control. Conflicts between public morality and governmental policy can be costly on many levels, draining resources and producing inefficiencies in political administration. While it is not absolutely required for a government to be moral in order for people under it to be moral, “it couldn’t hurt!” (best pronounced with a comical Yiddish accent). [:)]

  8. As I said in my previous response, American law is not based on religious values as such. It merely supports such values for a broader spectrum of reasons. Since the Supreme Court must consider arguments from competing perspectives in order to evaluate the constitutional issues invoked by the controversy over a democratically produced legal policy, it becomes the responsibilty of those whose values justify the policy to reiterate them for the court in defense of it.

    As long as that can be expressed in language and context understandable and acceptable by the court.

    It is true that the behavior of individual citizens can be morally superior to the governmental environment in which they perform (as it was for Rav Yeshua’s followers and Torah-observant Jews in general under Roman occupation).

    And our responsibility as disciples of the Master is to strive to live up to his standards, which will no doubt exceed those set by our governments.

    While it is not absolutely required for a government to be moral in order for people under it to be moral, “it couldn’t hurt!” (best pronounced with a comical Yiddish accent). [:)]

    Agreed. 🙂

  9. I really think we are using one word to define two different things. I have been married twice. The first time, my ex-husband and I went to the court house. We entered a legal contract with the state. There was no mention of God, we essentially set ourselves up as a business partnership.

    The second time, my husband and I went to the church. We were counseled by clergy. We entered a covenant with God. We are a restored unity (Genesis 2:24) and reflect the attributes of God to the world. We are to paint a picture of how Christ loved his church. This is a very different thing than what I did the first time. Yes, we did go to the state and have our “business” partnership, our obligation to one another legally recognized too. We raise children together; we have combined our finances. I left a high paying job and moved across country with him so that he could advance in his career. We used my retirement savings to pay for a homestead. It was just smart to be recognized as a legal next of kin who will be able inherit his estate. It was wise to protect myself should he decide, “You know that ’til death do we part thing? I thought I meant it, but not so much…”

    And, as a Christian who votes Libertarian, I ask myself:

    Why do two consenting adults need the government’s permission to enter into a contract at all? As long as they don’t infringe on my right to life, liberty and ownership of the fruits of my labor, it isn’t illegal. If a license allows you to do a thing legally that would otherwise be illegal, why do we need a marriage license? How will allowing gay couples to make legal arrangements with their partner for their mutual benefit (identifying that person as their legal next of kin so that they have clarified inheritance, property, healthcare decisions, etc.) negatively affect my own (and others) “sacramental or covenant” marriage?

    Does the state define marriage for the church? Perhaps, the correct response from the church would be teaching the difference between what is done by the state and what is done in front of God. Maybe, just maybe, Christian marriage should be something entirely different. The church really should remain independent and uninvolved in the state’s definition of marriage.

    And, ultimately, I think the state needs to get out of the marriage business.

  10. Why do two consenting adults need the government’s permission to enter into a contract at all?

    Because the marriage contract is legally binding. It guarantees each partner certain protections, and especially offers protections to any children that result from the marriage. That’s the only reason the state is involved. Because people sue their spouse for alimony, child support, and the like through the court. If your spouse dies, you have legal rights to his/her property and any property jointly held (cars, houses, bank accounts). Without those legal protections, the government could swoop in and tax the living daylights out of any “inheritance” a child or spouse might receive.

    Anyone can go to a church and get married in the presence of God and it doesn’t have to be a legal contract. If you get married by clergy, it becomes both, since you also get a marriage license along with the deal.

  11. None of the things you mentioned have anything to do with the sacrament of Christian marriage. And, the case before the SCOTUS regarding DOMA is exactly about the government swooping down and taxing the living daylights out of the inheritance of a legally married same sex spouse. I believe with all my heart that in a relationship that lasted 4 decades, that the surviving partner contributed to that relationship in such a way that she has “earned” her inheritance. I don’t know the dynamics of their relationship, but I know I am largely responsible for caring for our home. My labor helps preserve the value of it. I have made decisions that keep me free and allow my husband to work overtime, travel, etc. and allow my husband to earn money that he would not be able to earn if he had to worry about who would care for our children. I do our book-keeping and manage our family budget. I have a voice in how much and where we invest.

    Philosophically, I am a minarchist Libertarian and believe the only proper function of the state is to protect lift, liberty and make sure that I can enjoy the fruits of my labor. I know it is pie in the sky, but I would like to move toward a reality where the government is doing just that. I know I won’t see it in my lifetime. Dictating human relationships just doesn’t make the cut of what I want the government to be doing.

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