Monday, March 10, 1997


CHAPTER 4: Marriage and the Law

This chapter is excerpted from my book Two Sexes, One Flesh: Why the Church Cannot Bless Same-Sex Marriage (Solon, Oh.: Latimer Press, 1997). Used with permission. This chapter is still relevant in its overall argument, but the court decisions and legal changes in USA and Europe demonstrate the increasing corruption of of the liberal tradition by the postmodern (liberationist) turn to relativism, nihilism and subjectivity.
Marriage and its purposes derive from the original design of the Creator. This design is mediated and regulated in a fallen world through the various institutions of human law. The Church, as the guardian of Holy Scripture, and the State, as the enforcer of law, have always had a joint interest in the oversight of marriage. In the West since the age of Constantine, civil society, i.e., the everyday life of citizens, has reflected the dual influence of Christian and secular traditions of marriage and family.

Same-sex marriage is as much a legal as a religious anomaly. No society has ever tried it before. I have already argued that it has no rooting in Scripture or the biblical understanding of marriage as a natural institution. Does same-sex marriage have some basis in traditions of justice, which would give rise to a new civic order? And what if the State were to impose same-sex marriage by force of law? How should the Church respond, and how would Christians live within such an order?

In this chapter, I shall consider the legitimacy of same-sex marriage as a matter of law. My particular thesis is that same-sex marriage, by its very ideology, is incapable of forming the basis of a new social order, Christian or secular. If institutionalized, same-sex marriage will only further corrode the place of marriage in contemporary society, and the whole liberationist project of which it is a part will eventually come to grief. For the Church to collaborate in this Babel-like experiment involves a tragic abandonment of its true prophetic responsibility to give moral guidance to the secular regime.

Same-Sex Marriage and the Traditions of Justice

To the question, “Is same-sex marriage a justice issue?” one may reply: “Whose justice?” and “By which rationality?”[1] Without agreeing finally with Alasdair MacIntyre that moral and political discourse is utterly tradition-bound, I would insist that any claim to justice must be rooted in a coherent and historically tested worldview.

I shall examine how marriage has coexisted with three Western traditions of justice: the Law of the Hebrew Bible and Judaism, the law proceeding from classical political thought, and modern law proceeding from natural rights theory. I shall argue that same-sex marriage does not cohere with these traditions but emerges from contemporary liberationism. And since the ethic of intimacy is the basis for liberationist sexuality, it is hard to avoid the conclusion that the push for same-sex marriage is part of a larger project to subvert marriage as it is known in the other traditions.

The Law of Moses: Putting Sexuality behind the Veil
St. Paul calls the Law a guardian for faith (Galatians 3:24); likewise marriage among the Jewish people served as a guardian of the good things of the Law. The First and Tenth Commandments frame the Law with two absolute prohibitions: against worshipping false gods (false religion) and coveting one’s neighbor’s spouse (false sexuality). The great danger of sexual desire, according to Genesis 3, is its pretension to transcendence: “you shall become like gods.” The world of Israel’s neighbors was filled with myths of gods and goddesses cavorting with each other. The central practices of fertility religion sought to manipulate the forces of the divine realm via sexual energy and were continuations of a prehistoric superstition supposing that spirituality could be communicated mechanically by means of the male’s vital semen. There is good reason to think that primitive pederasty was based on a similar superstition.[2]

Over against this superstition, which cloaked visceral passions of lust and misogyny, the Law places a definitive No. Israel’s refusal to identify sexuality with spirituality begins at the top, with the portrayal of God himself, and it extends its non-sexualized understanding of the world down through the social structure.

The monotheist God is not sexually a male. He is not at all phallic, and does not represent male virility. Biblical anthropomorphic language uses corporeal images of the arm of God, the right hand of God, God’s back, and God’s tears. God is not imagined below the waist.... Biblical thought does not see sexuality as a gift of God. To the Bible, the sexual and divine realms have nothing to do with each other.... This desacralization of sexuality meant that sexuality was treated as a completely sociological, human phenomenon. Israel discusses sexuality in the language of law; the concerns that it expresses are those of social behavior and social control.... Sexuality is harnessed to the family; it is confined within the nuclear family and plays, in turn, its part in defining the larger family unit.[3]

The advent of the biblical worldview constitutes an historic change, what one writer calls “Judaism’s Sexual Revolution,” which has spread throughout the world wherever monotheism has been established:

When Judaism demanded that all sexual activity be channeled into marriage, it changed the world. The Torah’s prohibition of non-marital sex quite simply made the creation of Western civilization possible.... This revolution consisted in forcing the sexual genie into the marital bottle. It ensured that sex no longer dominated society, heightened male-female love and sexuality (and thereby almost alone created the possibility of love and eroticism within marriage), and began the arduous task of elevating the status of women.[4]

The laws against homosexuality are to be understood as part of the biblical refusal to mix sexuality and spirituality. Thus St. Paul spoke as a true son of Israel when he linked together false religion and false sexuality (Romans 1:18-32). As a Christian apostle, Paul developed a strenuous ethic of celibacy and an exalted view of mutual submission in marriage, but he never altered his Jewish sensibility toward homosexuality as incompatible with the belief in a single Creator of an ordered creation.

The Classical Tradition: Family and City
It is no secret that many Greeks engaged in homosexual acts, usually between an older married men and male youths. “Pederasty” was a rite of passage defined by strict customs, such as the distinction between the older active partner (the erastes) and the youthful initiate (the eromenos).[5] The orator Pausanias, in Plato’s Symposium, praises this kind of love: “These two customs, one the love of youth, and the other the practice of philosophy and virtue in general, ought to meet in one, and then the beloved may honorably indulge the lover.” Such sentiments are aired in a drinking bout by men who are also married and have no intention at all of institutionalizing their affairs.

Nowhere in the corpus of classical philosophy is same-sex marriage seen as an implication of justice. In Book 5 of Plato’s Republic, Socrates leads his youthful inquirers to consider whether the most just regime in the abstract requires heterosexual communism, where women and men share all things in common, including children. He concludes, however, that the justice of such a regime is more a matter of speech than reality.[6] In his concrete teaching on justice, Plato both condemns the practice of homosexuality and affirms a private sphere for the family (Laws 1.636; 6.771-785; 8.838-839).

Aristotle argues that while the family is the original and necessary unit of civil society, human nature reaches its perfection in the city.[7] The delicate interaction between private life and public life as joint schools for virtue is expressed in this way by a modern-day Aristotelian:

Marriage, like every worthwhile institution, is also a tradition – a smooth handle on experience, which has been passed on from generation to generation, and in the passing, slowly worn itself into the shape required by human nature. It has a story attached to it: its comic and tragic aspects are a familiar part of popular culture; its hardships and joys can be anticipated and also shared; it has the respect and the understanding of others. Moreover, it translates itself into legal forms, and endeavours to reconstitute as legal rights the many and mysterious obligations which arise from domestic proximity.[8]

If one wishes a graphic embodiment of this description, read the books or see the movies from another modern traditionalist, Jane Austen. While homosexuals may exhibit truly noble friendship for one another and compassionate care for unrelated persons, they cannot produce the complex intergenerational reality of marriage and family as a societal unit. There simply is no role in the tradition for same-sex couples.[9]

The Modern Natural Rights Tradition
Modern political philosophy is founded on the idea that human rights are grounded in the “state of nature,” where each individual is free to preserve his own life and dignity. Individuals enter into political society by means of a social contract, in which they cede control to the state in return for protection of person and property. A contract philosopher like John Locke can thus regard marriage as a “voluntary compact between Man and Woman” rather than a divine institution.[10] Locke replaces the divine institution with the law of Nature’s God, the natural instinctual affection of man and woman and their desire to reproduce themselves. Thus Locke’s theory may indeed justify the state’s regulation of marriage contracts, e.g., age of consent and conditions for divorce; but it does not mean that the state can alter the fundamental biological requirement that it is a man and woman who make a marriage.

Locke’s Romantic peer in the natural rights tradition is Jean-Jacques Rousseau. While arguing that the family is the only natural unit of society, Rousseau made vive la diffĂ©rence the charter of the husband-wife relationship. “In everything not connected with sex, woman is man,” Rousseau teaches. “In everything connected with sex, woman and man are in every respect related and in every respect different.” Because of this natural complementarity of the sexes, “in the union of the sexes each contributes equally to the common aim, but not in the same way.”[11] For Rousseau, marriage is the tiny society in which the lonely individual can overcome selfishness by falling passionately in love with someone different from himself.

American political sensibility is a marriage of Locke and Rousseau, of pragmatism and sentimentality. Alexis de Tocqueville commended American democracy on its accommodation of egalitarianism to the structures of family life: “The Americans have applied to the sexes the great principle of economy which governs the manufactures of our age, by carefully dividing the duties of man from those of woman, in order that the great work of society may be carried on.”[12] A century and a half later, sociologists Brigitte and Peter Berger could reiterate that “the family, and specifically the bourgeois family [i.e. father, mother, children], is the necessary social context for the emergence of the autonomous individuals who are the empirical foundation of political democracy” [their italics].[13]

Upholding traditional marriage as an ideal has been a universal convention in American jurisprudence. Justice Douglas, in nullifying a law allowing sterilization of criminals, argued that “we are dealing here with legislation which involves one of the basic rights of man. Marriage and procreation are fundamental to the very existence and survival of the race....”[14] Douglas is not saying that there is an absolute right to define marriage as one pleases. Rather individuals have a right of access to pre-political realities according to the shape of those realities.

The natural rights tradition is not sufficient to assure a Christian understanding of marriage; in fact, it needs the religious doctrine to create a moral climate in which rights will be responsibly exercised. The tradition has shown itself compatible with Christian marriage. For two centuries, the Christian ideal of marriage has been upheld in the United States by public consent and legal sanction, and clergy have functioned as ministers of the state as well as the Church in performing marriage ceremonies.

The assumption on the part of American legislators that everyone agreed on the heterosexual character of marriage led to a number of statutes speaking of the rights of “spouses,” meaning husbands and wives. In the current climate, Congress has had to clarify its statutes with the Defense of Marriage Act, which states that “the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.”[15]

Liberationism as the Context of Same-Sex Marriage

The public and political movement to normalize homosexuality has a direct tie to the sexual liberation ideology of the 1960s.[16] This ideology undergirds the ethic of intimacy, as noted in Chapter 1. While the sexual liberation movement uses the language of rights, it draws on an analysis of society much more dependent on Marx and Engels, for whom the bourgeois family was an economic unit of history that was passing away, and Freud, who declared that monogamous marriage “cuts off a fair number of people from enjoyment and becomes the source of serious injustice.”[17]

The liberationist project begins with a deconstruction of traditional institutions as inherently oppressive. If slavery has oppressed blacks and capitalism oppressed workers, so also marriage has oppressed women. From this deconstruction flows Carter Heyward’s “healing commitment not to grant coupling or heterosexual marriage a privileged social status apart from other forms of relational commitment.”[18]

Liberationists then proceed to a reconstruction of consciousness in which the person is radically self-defining. Who I really am is unconstrained by nature or dogma. One’s essence is “to explore the character of the erotic as sacred power” or “to live, to love, to be.”[19] “Moderate” versions of liberationism refrain from wild, libertine effusions and wish to hold onto elements of the tradition, but they always retain the right to redefine it. So, for instance, Episcopal ethicist Timothy Sedgwick writes:

What has been normative is not the institution of marriage itself, any more than procreation and progeny. Instead, as Jesus makes clear, marriage is holy as a covenant in which the love between two persons is manifest as it draws each beyond the self in welcome, care, and joy in each other and in the world beyond. Rejecting traditional proscriptions against sexual relationships between homosexual persons is, in this light, no more radical than Jesus’ challenge to what were the traditional, sacred practices of marriage in Israel.[20]

Employing the “proof-analogy” method, Sedgwick suggests that Jesus’ rejection of divorce in his day is equivalent to rejection of traditional marriage today and its replacement by a pure relationship between “two persons.” Sedgwick’s articulation of the ethic of intimacy is, finally, every bit as radical as Heyward’s and Spong’s.

The ethic of intimacy offers Everyperson the opportunity to become master of his/her soul, to be self-made not only economically but spiritually. Nietzsche for the masses![21] Ironically, the liberationist offer of individual self-creation produces not Superpersons but Nietzsche’s “last man,” what C. S. Lewis called “men without chests.”[22] The liberationist attack on sexual norms, which has had its greatest impact in upscale families, has resulted not in more and better love but in a generation of unerotic, burnt-out, flat-souled students.[23] Maggie Gallagher argues that marriage is now the true arena of romantic adventure.

A hundred years ago (and for centuries before that) romantics, living in a time when marriage could be taken for granted, imagined that the heroic acts of love must take place outside of marriage. But these wistful romantics were wrong. Today we have learned through a painful process of social experimentation that it is not free love but the vow that is daring. To dare to pledge our whole selves to a single love is the most remarkable thing most of us will ever do.[24]

We do not defend traditional marriage out of desire to stifle the erotic side of human nature, but out of a conviction that it is only in this context that it may be fully experienced.

To Marry or Not to Marry?
The debate among gay-rights advocates over same-sex marriage is poised between the deconstructive and reconstructive moments of liberation thought and politics. The deconstructionists fear that marriage may co-opt the liberation movement, while reconstructionists argue that same-sex marriage may serve as a means by which the entire institution may be redefined.

Paula Ettelbrick speaks for the deconstructionists and warns that the push for same-sex marriage is a betrayal of the movement:

In arguing for the right to legal marriage, lesbians and gay men would be forced to claim that we are just like heterosexual couples, have the same goals and purposes, and vow to structure our lives similarly. The law provides no room to argue that we are different, but are nonetheless entitled to equal protection....

Ironically, gay marriage, instead of liberating gay sex and sexuality, would further outlaw all gay and lesbian sex which is not performed in a marital context. Just as sexually active non-married women face stigma and double standards around sex and sexual activity, so too would non-married gay people. The only legitimate gay sex would be that which is cloaked in and regulated by marriage. Its legitimacy would stem not from an acceptance of gay sexuality, but because the Supreme Court and society in general fiercely protect the privacy of marital relationships. Lesbians and gay men who do not seek the state’s stamp of approval would clearly face increased sexual oppression.”[25]

Ettelbrick views marriage as an institution that must be overthrown, or at least removed from its normative pedestal. She therefore argues for raising domestic partnerships to the status of marriage, which would blur the distinction between the two and thus subvert marriage and family.

Reconstructionists like William Eskridge argue that heterosexism, not marriage, is the true enemy and that homosexuals can actually benefit from the stability and status that marriage affords. In the process of joining the ranks of the married, Eskridge continues, homosexuals will transform the institution from within:

One feature of our experience has been an emphasis on “families we choose,” anthropologist Kath Weston’s felicitous phrase. Such families are fluid alliances independent of the ties imposed by blood and by law. Often estranged from blood kin, openly gay people are more prone to rely on current as well as former lovers, close friends, and neighbors as their social and emotional support system. Include children in this fluid network and the complexity becomes more pronounced. Because same-sex couples cannot have children through their own efforts, a third party must be involved: a parent or agency offering a child for adoption. The family of choice can and often does include a relationship with this third party. Gay and lesbian couples are pioneering novel family configurations, and gay marriage would not seriously obstruct the creation of the larger families we choose.[26]

It is not clear that Ettelbrick and Eskridge are that far apart, in that both want to bring traditional marriage to an end. The $64,000 question is, what would the institutionalizing of “families we choose” do to our society’s commitment to lifelong, monogamous marriage? The emphasis on “choice” differentiates the sexual liberationist from the natural rights tradition. In the latter, “rights” are conditioned by nature; but to the liberationist, nature is itself an oppressive construct, and the untrammeled self reigns supreme.

Three Questions for Marriage Liberationists
If the institution of marriage, for the first time in history, must redefine its opposite-sex character, why should we not expect that it will be asked to redefine other aspects of its identity? This problem leads to questions in the three areas of lifelong commitment, sexual chastity, and normativity.

First of all, marriage in the Christian tradition has always been a lifelong commitment, and most secular marriages also use “till death do us part” language. Gay advocate Andrew Sullivan defines marriage as “an emotional commitment of two people for life.”[27] But why for life? Why should a homosexual remain in a lifelong marriage if the emotion is drained from the commitment? Why should anyone remain in such a loveless relationship, especially when the interests of children are not involved?

Are same-sex marriage advocates in the Episcopal Church prepared to accept the lifelong commitment of traditional marriage? Are they prepared to make it harder to divorce and to reverse the present trend toward serial polygamy in Church and culture? The preliminary answer to this question seems to be No. The proposed “Illustration” service departs explicitly from the Prayer Book service when it comes to the marriage vow:

Presider: N., will you accept N. as your partner in life, and promise to be united to him/her in love and support for each other?

Response: I will. Blessed be God who visits me in N’s love.[28]

The proposed rite calls for a “love-long” but not a lifelong commitment.[29] The rubrics of the “Illustration” service go on to note that “physical or emotional spousal abuse or infidelity” may necessitate dissolution of the union.[30] Are there any other conditions which justify divorce? The “premarital” instruction of this proposed rite suggests that the couple may develop “rules and practices for dissolution.”[31] Does this include a “no-fault” decision to part ways?

Second, Christian marriage has always been seen as requiring chastity. Married partners remain chaste by maintaining exclusive sexual fidelity to the other partner; unmarried chastity involves abstinence from sex before marriage or outside marriage. Some proponents of same-sex marriage, like Bishop Spong, are also pushing for non-marital sexual arrangements. Others, like Andrew Sullivan, suggest that same-sex desire makes the “need for extramarital outlets” more acceptable for all married partners, gay and straight.[32]

What premarital expectations are intended in proposals for same-sex marriage in the Episcopal Church? The “Illustration” service separates the “Engagement” from the “Commitment.” During the “Engagement,” the couple take marriage-like vows, exchange rings, and pledge to “explore their commitment to a life together.”[33] Are we to understand that this engagement does not involve genital sex, or is this a kind of “bundling” period? Would a priest be willing or able to require the couple to disengage sexually in order to lower the pressure of emotional urgency present in most courtships? The answer to these questions is No. Premarital chastity is simply not important to those guided by the ethic of intimacy. In the Penthouse affair, for instance, neither the priest involved, nor his bishop, nor the Presiding Bishop, expressed any concern that he had engaged in sex with his lover prior to the “wedding.”

Finally, marriage has held a normative status in society, both in public morals and in legal preferences. Mores, morals, and laws work together to promote virtue in a healthy society, and the Church has served society by giving theological justification for its moral norms. Morality must not only identify virtuous arrangements but disapprove violations of the norm through public shame (note how in the past two decades cigarette smoking has gone from being considered a normal to a shameful activity).

The question for liberationists is this: are you advocating same-sex marriage as part of a normative institution that continues to claim an exclusive status? Are you willing to disapprove publicly of non-marital sex, whether by heterosexuals or homosexuals? Are you willing to teach young people, whether gay or straight, not to engage in any sex before marriage? Are you willing to back laws like those restricting cigarette smoking that would disfavor non-marital unions? Are you willing to warn fellow Christians that their sexual activity has put them out of communion with God?

In their “theological reflections” on the purposes of marriage, Episcopal advocates inveigh against the “heterosexist structure” of traditional marriage but evince no concern that the institution of marriage is necessary to safeguard society.[34] They express no explicit disapproval of divorce or promiscuity in the culture at large. The “Illustration” service does require one partner to be baptized and presumes a church community for the union. Does it thereby assume that all members of the church community will exercise their sexuality exclusively within such formal commitments?

Questions about lifelong commitment, chastity, and normativity are the very areas in which Paula Ettelbrick foresees same-sex marriage as derailing liberation. They are questions that classical Christians have always answered affirmatively. Until the proponents of same-sex marriage can speak with the same moral clarity, they raise doubts that they are speaking even about a parallel institution, let alone the same one.[35]

A Warning Example: No-Fault Divorce
Ideas have consequences, and a different conception of marriage will lead to different results in Church and society. Since same-sex marriage has never been tried in history, it is hard to prove that point. But there has in fact been a similar experiment with liberationist marriage policy over the past twenty-five years: no-fault divorce.

When no-fault divorce was instituted in California in 1970, it was heralded as a way to make divorce settlements more humane and efficient. It was not supposed to change the nature of marriage or increase the number of divorces. But the fact is, no-fault divorce redefined marriage as a voluntary contract, which either party could get out of at will. Maggie Gallagher calls no-fault divorce “the murder of marriage”:

In 1970 Mary, a nice Catholic girl in her early twenties, tried to commit an illegal act.

She and her boyfriend Jim had just graduated from a small Catholic college near San Francisco and like many other young couples they decided to wed. They had blood tests and proper licenses; a priest officiated at the ceremony; the bride marched up the aisle in a white dress, they exchanged vows, she took his name, and over the years bore two children. To all outward appearances, Mary and Jim were married. Everyone said so.

But 1970 was the year the state of California imposed no-fault divorce. With that act, quietly, with little public fanfare or political debate, the state of California outlawed marriage.

Mary did not find out till nearly a decade later when Jim decided to fly down to Los Angeles to scout out law offices for a new practice. Two days later, Mary received a long letter in which Jim explained that he had married too young and needed to “find himself.” She was left with two toddlers, $12,000 from the sale of the house and $300 a month in child support.

When Mary agreed to live in the same house with Jim and accept his financial support and offer her own paid and unpaid labor to the household, to sleep in the same bed and to bear his children, she did so because she thought she was married. Had Jim asked her to do these things for him without getting married, she would have slapped his face. Mary knew what marriage meant. The example of her parents, and the teachings of her religion gave her a concrete idea of the unwritten law. It meant the two became one flesh, one family. It was a lifetime commitment.

But the state of California later informed her that she was not allowed to make or to accept lifetime commitments. No-fault divorce gave judges, at the request of one half a couple, the right to decide when a marriage had irretrievably broken down. They decided by and large that wanderlust would be a state-protected emotion, while loyalty was on its own. In a cruel display of judicial power, the state of California made Mary a single woman again, without protecting her interests and without requiring her consent.[36]

No-fault divorce law does not force families to break up, but by removing the legal burden of proof, it tempts one partner or the other to separate unilaterally when the going gets rough. And it is the more vulnerable family members, usually the wife and children, who lose in such “settlements.” No-fault divorce, experts now agree, has been not only a major factor in the proliferation of divorce in the United States but also in the “feminization of poverty.”[37] For this reason, a number of states are now considering revising or repealing no-fault divorce laws.[38]

The Episcopal Church itself entered into an experiment with no-fault divorce in 1973. The change in the divorce canons was billed at the time as merely a matter of pastoral application of the traditional doctrine of marriage enshrined in the Prayer Book and the canonical Declaration of Intention. In practice, however, clergy lost the institutional support and then the personal confidence to say No to anyone seeking divorce or remarriage.

Before long, clergy found they could not even say No to themselves, and not long afterwards bishops were looking the other way when their colleagues divorced and remarried. Liberationists who made a martyr of Bishop Walter Righter apparently found it acceptable that he had remarried twice while remaining an active bishop. The biblical rule that a bishop must be the husband of one wife is based on common sense: failure in one’s own family undercuts a leader’s credibility in disciplining others (1 Timothy 3:2-5). Too many Episcopal parishes and dioceses have suffered from the neglect of this simple pastoral rule.

The lesson of no-fault divorce in Church and society is this: tinker with the law and you will find yourself victim of unintended consequences. The loosening of the marriage bond by those who promote the liberationist agenda is no accident. Therefore those who uphold the Church’s traditional teaching will oppose any further liberalization of the doctrine and discipline of marriage, and will urge a tightening of the current pastoral discipline (see specific suggestions on pages 99-100).

Same-Sex Marriage and Children
If same-sex marriage involves a radical reconfiguration of the marital bond, it equally involves a radical revision of the idea of a normal generational family. To begin with, it is not clear whether the norm for the same-sex family would be the childless couple or the adoptive family. If same-sex marriage were legal, would homosexual couples enter an overcrowded pool of prospective adoptive parents claiming equal access?

Even if same-sex marriage did not result in a chaos of “families we choose,” it would raise serious issues concerning the formation of the psychological identity of children, both those raised within it and without. Eskridge sees this as a virtue:

Potentially, the most advantaged by the new dynamic could be gay youth. If societal homophobia were blunted, the lesbian, bisexual, or gay adolescent who is confused or threatened by her or his sexuality would feel less constrained about seeking guidance and would be more likely to know a gay authority figure who can provide initial support. A world of gay couples and same-sex spouses should offer more accessible role models for the youths trying to reconcile their sexuality with the family environment in which they were raised.[39]

Only a hard sexual essentialist can believe that growing up with same-sex parents will not influence a child’s sexual orientation. The twin studies demonstrate that even if genetic make-up is one factor influencing homosexual orientation, the family environment always plays an important part in identity formation.[40]

Recent studies have reinforced the proverbial wisdom that every healthy family requires a father and mother. Sociologist David Popenoe notes that “gender-differentiated parenting is of such importance that in child-rearing, either gay or lesbian, one partner commonly fills the male-instrumental role while the other fills the female-expressive role.”[41] Cross-gender accommodation of roles may be necessary in single-parent families. It hardly follows that society should authorize same-sex parents as an equivalent for the normal roles of father and mother.

The Legal Challenge of Same-Sex Marriage

The case for same-sex marriage does not derive from the classic traditions of justice, but from the ideology of the Sexual Revolution that has attained currency only quite recently. The “make love not war” demonstrators of the Sixties are today’s law professors and judges.[42] It is not surprising therefore that same-sex marriage has become a legal issue in the courts today. Although no state has, up to the moment of this writing, endorsed same-sex marriage, the possibility that same-sex marriage will be mandated in some state (probably Hawaii) has led a number of states to pass laws refusing to recognize it and Congress to pass the Defense of Marriage Act.

From Natural Rights to Lifestyle Rights
The arguments adduced by activist lawyers offer an excellent case study of how liberationists revise the natural rights tradition to their own end.[43] To begin with, the legal fulcrum for redefining marriage is the Fourteenth Amendment, which was originally intended to protect individuals on the basis of a natural characteristic, i.e., race. Now by extension, activists are attempting to elevate lifestyle choice to the same status as race. In Loving v. Virginia (1967), Chief Justice Earl Warren struck down a Virginia separate-but-equal marriage law as a violation of the Fourteenth Amendment, arguing:

The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men…. To deny this fundamental freedom on so insupportable a basis as the racial classification embodied in these statutes ... is surely to deprive all the State’s citizens of liberty without due process of law.
Eskridge argues that the logic of Warren’s decision can be extended to uncover a “right to marry” regardless of sex:

... Loving cautions us to think twice before we claim that marriage is “inherently” such and such. Neither history nor the Bible nor the imperative of procreation establishes what marriage must be, as a matter of law. Marriage is an important social and legal construction, and it is what we make it to be.[44]

Here we see the positivist thrust of liberationism. While the Warren Court was noted for its judicial activism in general, the Chief Justice did not in any way consider redefining marriage. Although he found racial classification “an unsupportable basis” for discrimination, he did not deny that there might be supportable grounds, e.g., age.[45] Loving v. Virginia is cited as a prime legal precedent for same-sex marriage. It is only convincing to those who accept the analogy of “race-gender-sexuality” as a straight-line progression of moral and legal liberation.[46]

The main roadblock to establishing same-sex marriage is the 1986 Bowers v. Hardwick case, in which Justice White ruled that there is no due process “right of homosexuals to engage in acts of sodomy.” The Bowers precedent has been cited by several lower courts in rejecting lawsuits by homosexuals claiming discrimination from the state’s marriage regulations.[47] Some Court-watchers, however, see the Romer v. Evans ruling as the first salvo in a campaign to overturn the Bowers precedent.

The Hawaii CaseThe first successful liberationist challenge to the exclusive status of heterosexual marriage occurred in the state of Hawaii in the case of Baehr v. Lewin (1993). The Baehr case was initiated by three same-sex activist couples who were refused marriage licenses. A highly politicized Hawaii Supreme Court voted 2-1-1 to overturn the state’s marriage law. The court rejected two of the plaintiff’s Fourteenth Amendment arguments: that there exists a “fundamental constitutional right to same-sex marriage” (“substantive due process”) and that traditional marriage constitutes “sexual-orientation discrimination” under the equal protection clause. But the judges accepted a third argument that heterosexual marriage regulations constitute sex discrimination against women under Hawaii’s equal rights amendment.[48] The end result of the decision will possibly be the abolition of traditional marriage norms in the state of Hawaii.[49]

The Judicial Future of Same-Sex Marriage
The U.S. Supreme Court will not review the Baehr case and may refuse, for political reasons, to hear any parallel appeals for the time being. The groundwork is laid, however, for a future decision in favor of same-sex marriage due to two recent, controversial rulings.

In Casey v. Planned Parenthood (1992), the Court offered an alternative ground for supporting abortion, moving from the privacy right (Roe v. Wade) to the “right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”[50] To live, to love, to be! Given this liberationist definition of freedom, does it not follow that a man or woman who wants to define his or her existence by marrying a person of the same sex is protected by the U. S. Constitution?

The logic of Casey reappears at least implicitly in the 1996 Colorado gay rights decision, Romer v. Evans. In Romer, the Supreme Court struck down a Colorado Constitutional Amendment that excluded homosexuals as a preferred group under affirmative action laws. Justice Kennedy made three noteworthy points in regard to same-sex marriage:

1. He argued that “homosexuals, by state decree [i.e., the Amendment], are put in a solitary class with respect to transactions and relations in both private and governmental spheres.”
2. He inferred that the Amendment “is born of animosity” rather than moral disapproval of homosexuals.
3. He denied any legitimate state interest in disqualifying homosexuals from special status.

Does it not follow from this logic that heterosexual-only marriage regulations, which govern private transactions and relations, are motivated out of residual animosity to gays and promote no legitimate state interest?

Taken together, the Casey and Romer cases lay a foundation not only for the permission of same-sex marriage in some states but for the abolition of traditional marriage in all states. Thus it has been said that these rulings “may prove to be the cultural equivalent of Roe v. Wade.”[51]

The Church’s Response: Cultural Guardian or Apostolic Pioneer?
The overlapping agreement on the nature of marriage across biblical, classical, and natural rights traditions has meant the Church has seldom sought either to revolutionize secular marriage laws or to reject them altogether. Christian marriage has found adequate grounding within systems of law and justice that were more or less hierarchical or egalitarian. Furthermore, no society in which Christians have lived has ever attempted to institute same-sex marriage. In the face of such a prospect, the Church today – and the Episcopal Church in particular – will have to choose between three ways of relating to the realm of secular law.

First, the Episcopal Church could oppose the same-sex marriage movement in the face of the secular culture, the academy, and many of its own leaders. Much of the cultural drift that worries so many Americans is the result of the loss of confidence by the “mainline” churches in the truth and power of the Gospel and the biblical worldview.[52] To offer the culture – and homosexuals – hope of healing from the destructiveness of libertinism and the “ethic of intimacy” would be a modern-day version of the Anglican evangelical societal reforms of the nineteenth century. This would be a case of Christ transforming culture.

Second, the Episcopal Church could maintain its traditional teaching on heterosexual monogamy but encourage secular authorities to permit same-sex marriage. This appears to be the course taken in 1996 by the Presbyterian Church U.S.A., which upheld the traditional norm for its own clergy but sought “to explore the feasibility of entering friend-of-court briefs and supporting legislation in favor of giving civil rights to same-sex partners.”

This second stance is not a principled compromise but only an uneasy truce. The Episcopal Church has lived in this limbo on the ordination of women and of active homosexuals in recent years, and the result is not encouraging. In the former case, an agreement tolerating diversity on women’s ordination is about to be legislated out of existence; and in the latter case, conscientious objectors like Bishops Spong and Righter have unilaterally ordained homosexuals despite official statements forbidding gay ordination since 1979. So there is no reason for orthodox Christians in the Episcopal Church to think that a compromise on same-sex marriage would not be simply a pause before the final push for victory. Homosexual couples married by the state would put immediate moral and legal pressure on the Church to affirm their status (see test case on page 21).

The third option is to accept homosexuals into the Church’s marriage rite and to encourage the state to legalize same-sex marriage. Revisionists may wish to characterize this approach as the Gospel liberating the culture; it is instead an example of cultural accommodation. The consequences of this third option are ominous for the Church’s internal and ecumenical unity (see pages 101-102). If the Hawaii judicial initiatives did not catch on around the country, the Episcopal Church would end up with a marriage rite that would sometimes be legal and sometimes not, depending on the sex of the partners and the state in which the marriage was performed.

This is a high price to pay for an innovation that knows no precedent in secular or ecclesiastical history. For those who believe, however, that homosexuals who engage in sex together are wholesome examples to the flock, it is only consistent to press forward with the same-sex marriage agenda.


The state and the Church both have a role and a stake in maintaining marriage as a two-sexes-in-one-flesh union of man and woman. The secular regime works from its own lights to establish the natural design of marriage for the sake of generational continuity and social stability. The Church grounds the institution in its understanding of God as Creator and Lawgiver and of the sacramental nature of the marital union. The cooperation of natural, legal, and spiritual authorities means that heterosexual marriage has been a central institution in all civil societies, even though the particular form of marriage in any one society and the individual marriages within it have not always been just or happy.

The sexual revolution’s assault on the barricades of tradition includes an attack on the justice of marriage. Liberationists accuse marriage of being unjust because it does not include same-sex partners. They claim to find in the natural rights tradition a “right to marry,” which if translated into law, would force all states to put same-sex marriage on an equal footing with traditional marriage, thus diluting or dissolving marriage as the preferred unit of society.

This social experiment is so radical that it is unclear whether the liberationists will succeed in pushing their agenda through the courts. What is indefensible, and potentially tragic, is that some churches that should know better are providing moral encouragement for the project. The Episcopal Church appears to be a prime candidate to give its blessing to this agenda.
Episcopalians committed to the authoritative teaching of Scripture on marriage will oppose the present liberationist agenda for the sake of the truth of the Gospel and for the sake of the wider society in which we live.


[1] Alasdair MacIntyre, Whose Justice? Which Rationality? (South Bend: University of Notre Dame, 1988).
[2] Greenberg, Construction, 33-34, argues that primitive pederasty reflected a belief that masculinity could be transmitted through the semen. The role of the berdache, he thinks (pages 64-65), reflects a belief that men and women who exchanged roles were exceptionally religious, i.e., shamans. On the other hand, homosexual acts among equals, either children or adults, were simply ad hoc occasions for the release of sexual tension.
[3] Tikva Frymer-Kensky, In the Wake of the Goddess: Women, Culture and the Biblical Transformation of Pagan Myth (New York: Fawcett, 1992) 188-190.
[4] Dennis Prager, “Judaism’s Sexual Revolution,” Crisis (Sept. 1993) 29. The original version of Prager’s essay appeared in Ultimate Issues 6/2 (Apr./Jun. 1990) 1-24.
[5] Eva Cantarella calls this practice “bisexuality,” not to be confused with modern bisexuality. See Bisexuality in the Ancient World (New Haven: Yale University Press, 1992).
[6] Allan Bloom, “Interpretive Essay,” in The Republic of Plato (New York: Basic Books, 1968) 379-389.
[7] Politics 1.2; cf. Nicomachean Ethics 7.5 (1148b 29).
[8] Scruton, Sexual Desire, 356.
[9] Facing this problem squarely but unpersuasively, Andrew Sullivan, Virtually Normal: An Argument about Homosexuality (New York: Knopf, 1995) 204, concludes that perhaps the contribution of same-sex couples to the forms of marriage is to have no role.
[10] Second Treatise on Government, sec. 78.
[11] Emile or On Education (New York: Basic Books, 1979) 357-358. For an extended discussion of Rousseau’s philosophy of love and marriage, see Allan Bloom, Love and Friendship (New York: Simon & Schuster, 1993) 39-156.
[12] Democracy in America 3.12. Rousseau and de Tocqueville were not unaware that sex differences could be minimized in the name of equality; they would simply warn, in Allan Bloom’s words (Love and Friendship, 108): “Sure you can make these changes, but the price will be the collapse of the family, and this proves that the human problems are permanent.”
[13] The War over the Family: Capturing the Middle Ground (Garden City, N.Y.: Doubleday Anchor, 1983) 172.
[14] Skinner v. Oklahoma (1942).
[15] H.R. 3396 (1996), signed into law by President Clinton in October 1996.
[16] Barry Ulanov, “The Limits of Permissiveness,” in Turner, Men and Women, 180.
[17] Friedrich Engels, The Origin of the Family, Private Property, and the State (New York: Pathfinder Press, 1972) 82-89; Sigmund Freud, Civilization and Its Discontents (New York: Norton, 1961) 51.
[18] Touching Our Strength, 152. This is the Fourth of Heyward’s “thirteen commitments” that presumably replace Moses’ Ten Commandments.
[19] Heyward, Touching Our Strength, 91; John Shelby Spong, Rescuing the Bible from Fundamentalism (San Francisco: Harper, 1991) 243.
[20] “The Transformation of Sexuality and the Challenge of Conscience,” in Our Selves, Our Souls and Bodies, 35.
[21] For the connection between Freud’s sexual psychology and Nietzsche’s philosophy, see John Farrell, Freud’s Paranoid Quest: Psychoanalysis and Modern Suspicion (New York: NYU Press, 1996.
[22] C. S. Lewis, The Abolition of Man (New York: Macmillan, 1947).
[23] Allan Bloom, The Closing of the American Mind (New York: Simon & Schuster, 1987) 132-137.
[24] Maggie Gallagher, The Abolition of Marriage: How We Destroy Lasting Love (Washington, D.C.: Regnery, 1996) 265.
[25] Paula L. Ettelbrick, “Marriage Is Not a Path to Liberation,” in Homosexuality: Opposing Viewpoints (San Diego: Greenhaven Press, 1993) 180-181.
[26] Case for Same-Sex Marriage, 81. See a similar “conservative” argument by Sullivan, in Virtually Normal, 202-205.
[27] Virtually Normal, 180.
[28] “Illustration,” 8.
[29] Cf. the vows taken in the Metropolitan Community Church “holy union” service: “in sickness and in health so long as there is love” (Eskridge, Case for Same-Sex Marriage, 194).
[30] “Illustration,” 17.
[31] “Illustration,” 19.
[32] Virtually Normal, 202.
[33] “Illustration,” 7.
[34] “Illustration,” 20-22.
[35] Episcopal gay rights spokesman Kim Byham admits the dilemma over marriage in a recent issue of The Voice of Integrity (Spring, 1996). Commenting on a statement from the Louisville chapter of Integrity that “our relationships are too varied and the need to offer truly innovative alternatives to heterosexual marriage is too great to attempt strict definition yet,” Byham concludes: “And if the folks from Louisville are right and we are divided among ourselves on this issue, we cannot expect the Church to resolve the matter quickly” (page 7).
[36] Maggie Gallagher, Abolition of Marriage, 143-144.
[37] Lenore Weitzman, The Divorce Revolution: The Unexpected Social and Economic Consequences for Women and Children in America (New York: Free Press, 1985); Judith S. Wallerstein and Sandra Blakeslee, Second Chances. Men, Women, and Children: A Decade after Divorce (New York: Ticknor & Fields, 1989).
[38] William A. Galston [President Clinton’s former domestic policy advisor], “Braking Divorce for the Sake of Children,” American Enterprise, May/June 1996, 36.
[39] Case for Same-Sex Marriage, 82.
[40] Satinover, Homosexuality and the Politics of Truth, 82-92.
[41] “A World Without Fathers,” Wilson Quarterly (Spring, 1996) 21.
[42] Lynn D. Wardle, “A Critical Analysis of Constitutional Claims for Same-Sex Marriage,” Brigham Young University Law Review (1996) 18-19, reports, for instance, that “between 1990 and June 1995, only one of seventy-two articles, notes, comments, or essays focusing primarily on same-sex marriage (only 1.4%) fully defended the heterosexuality requirement for marriage.... and only two other law review pieces about same-sex marriage published during that period primarily criticized constitutional arguments for same-sex marriage.”
[43] For contrasting views, cf. Eskridge, Case for Same-Sex Marriage, 123-182, in behalf of a constitutional right to same-sex marriage; and against it, Wardle, “Critical Analysis,” 1-101. See also the exchange in The Georgetown Law Journal between Stephen Macedo, “Homosexuality and the Conservative Mind,” Geo. L.J. 84 (1995) 261-282; and Robert P. George and Gerard V. Bradley, “Marriage and the Liberal Imagination,” Geo. L.J. 84 (1995) 301-320.
[44] Case for Same-Sex Marriage, 160.
[45] Hadley Arkes, First Things: An Inquiry into the First Principles of Morals and Justice (Princeton: Princeton University Press, 1986) 344-345, argues that Warren’s “flourishes” about the role of marriage were irrelevant to what was essentially a race discrimination case. If there had been a separate-but-equal law forbidding a business partnership, it would have been struck down for the same reasons.
[46] In Loving v. Virginia, the Court did not appeal to a general libertarian principle but rather to the specific intentions of the Fourteenth Amendment to prohibit racial discrimination.
[47] The concurring opinion in Dean v. District of Columbia (1995) reasons: “If it is impossible for two persons of the same sex to ‘marry,’ then surely no court can say that a refusal to allow a same-sex couple to ‘marry’ could ever be a denial of equal protection.”
[48] The plaintiffs argued that heterosexual marriage forced women into a submissive role. The Hawaii ruling fulfills the prophecies of Phyllis Schafly in the 1970s that an Equal Rights Amendment would be used for purposes other than guaranteeing equal opportunities for women.
[49] In Fall 1996, the State attempted to demonstrate its interest in heterosexual-only marriage in a circuit court case (Baehr v. Miike). In early December, the district court ruled against the state, which is appealing to the State Supreme Court. In all likelihood, the Supreme Court will uphold the ruling. While the Hawaii courts are moving one way, the Hawaii legislature, responding to the 70% of the population opposed to the Baehr ruling, is conferring on bills to amend the state constitution to forbid same-sex marriage. A referendum has been passed by voters to hold a constitutional convention that would nullify these court decisions. However, both of these initiatives may be foiled. See David Orgon Coolidge, “Same-Sex Marriage: As Hawaii Goes…” First Things (April 1997) 33-37.
[50] The sentences preceding this famous dictum have clear application to same-sex marriage: “Our law affords constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education. [These] matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment” [italics added]. While this argumentation does not have the force of precedent beyond abortion rulings, it certainly could be employed in establishing a new marriage precedent.
[51] Robert L. Maginnis and Robert H. Knight, “Judicial Terrorism: A Moral Crisis,” Perspective (May 24, 1996).
[52] See Philip Turner, “Mapping the Territory,” in idem, ed., Men and Women, 8.

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