"There is always a philosophy for lack of courage."—Albert Camus

Monday, June 19, 2006

Acton's Jordan Ballor Responds on Christianity, the State, and Gay Marriage

Got this from Jordan Ballor last week:

There are at least two ways I see that are helpful for getting at the question of the church's attitude toward the recognition of gay marriage by the government. I'll outline the short way, and give some hints at the long way, which I believe both end up arriving at the same conclusion.

Before this, however, I want to take a moment to define some terms. For the purposes of this discussion, I will use the term gay marriage to refer to the legal and public recognition of the union of two same-sex partners. My use of this term should not be construed as an acknowledgment of this social relation as a species of the genus marriage. I explicitly do not believe that so-called gay marriage is really marriage at all.

First, the short way. If we take Aquinas' rule of thumb as a starting point, that not all immoral things are to be illegal (quoted here), the determining factor becomes whether the criminalization of an immoral behavior would result in more or less evil, i.e. whether by doing so the state would be stirring up more evil or restraining it.

From a Christian perspective, that gay marriage is immoral is beyond doubt and that it violates at least the commandment regarding adultery is undisputed. Note that the scope of the seventh commandment is sexual purity, and that as has been the traditional Protestant and Roman Catholic practice is to interpret these commandments with both positive and negative aspects.

As part of the second table, Calvin, Luther, and others would agree that the enforcement of the adultery commandment at least theoretically falls under the purview of the state. The traditional differences which you relate that are often observed about the relationships between the first and second table are thus of no real relevance for this discussion, since first table commandments are not at issue. Gay marriage is not simply a "religious" issue as the first table is often construed, but a moral/civic one relating to the second table. With this in mind, we must at least consider the possibility whether or not homosexual activity, and certainly the kind of homosexual relations characteristic of gay marriage, ought to be criminalized.

Let's assume for the sake of this argument, as so much of American society already has, that this sort of legal prohibition does not meet Aquinas' prudential criterion: it creates more evil (in the form of an intrusive government, among other things) than it restrains. This, I believe, is a possible and tenable argument against the criminalization of homosexual activity.

This recognition does not leave us with only one option, that is, for the government to recognize gay marriage. This merely leaves us without any laws whatsoever from the government on this point, and thus leaves the government's approval or disapproval of this activity as moral or immoral ambiguous at best.

But for the government to actively recognize and therefore promote gay marriage would be to explicitly sanction this activity as morally praiseworthy, just, and helpful for society. We have already established that homosexual activity is immoral, and therefore the government has no valid role in promoting or establishing such activity as normative. There is thus a difference between saying something is legally permissible and that it is morally permissible or even praiseworthy.

In this way, the Christian view of the government's role regarding gay marriage can take two forms. First, the Christian might say that the government should prohibit and enforce this portion of the second table in pursuit of restraining evil. Second, the Christian might make a prudential judgment and say that the government would create more evil by making and enforcing such laws, and should therefore make no positive law on this point. There is no third option for the Christian view of the state, that is, that it should actively promote, recognize, and protect an immoral set of social relations.

I understand the current attempts of Christians to argue in favor of some sort of marriage amendment to prevent the third (non)option, in favor of the second, which leaves homosexual relations legal but does not allow for them to be codified and sanctioned by the state.

The long way of going about this argument would be to outline the roles and relationships between the various institutions, spheres, or mandates, specifically regarding marriage/family, government, and church. I understand these in a similar way to what Bonhoeffer says regarding the four divine mandates (marriage, work, government, church), which I believe is consistent with a line of social thought including at least one possible form of Kuyper's view of sphere sovereignty (not specifically Dooyeweerdian conceptions, for example) and going back through various Reformers including Wolfgang Musculus, who wrote of three laws in the Garden of Eden, relating to procreation, dominion, and work/provision of food.

On this account, marriage and family exist apart from and distinct from government and the church, and so both of these latter institutions merely recognize, affirm, and ratify the prior relationship rather than creating it de novo. I believe gay marriage would be a legal creation, not the recognition of an actual prior social relation that is continuous with the created and preserved order of heterosexual marriage. I don't have time more than to hint at this latter method, but again, the result would be that the state certainly has no obligation, or even permission, to recognize, promote, and/or establish, a set of social relations that violate the moral order, especially as articulated in the second table commandments.

A few other issues:

1. Can you explicate further this distinction between an instrumental vs. sacred function of the state to which you refer? Do you get this terminology from Luther? For Luther, the state is sacred, insofar as it is God's rule with his left hand.

2. The recognition of the state as an order arising from the Fall rather than something embedded in creation is of ambiguous relevance. Calvin would certainly agree that the coercive nature of government arises as a result of sin, even though he might argue that government without this characteristic is at least hypothetically manifest in the primal state. But Calvin is not representative of the entire Reformed tradition. A more modern example, like Brunner, who at least in some ways is taken to represent a Reformed position, argues explicitly that the state is an order of preservation arising after the Fall, distinguishing it from an order of creation.


Hunter Baker said...

My quick response to Jordan is that I see the possibility of a fourth Christian response to the whole gay marriage thing, which is relative indifference, at least at the political level.

You are quite right that homosexual sex acts and certaintly homosexual marriage are easily classified as sin by virtue of both Christian tradition and scripture. I don't think it is even close.

I think you are also right that dealing with homosexual marriage in the law is quite different than regulating something like Sabbath observance. As you say, there is a clear difference between the "vertical" and "horizontal" commands (AKA, the first and second tables).

But the question is whether we should seek to deal politically with everything that is a sin based on the second table of the Ten Commandments or other parts of Christian revelation.

Consider abortion. It seems to me that the Christian cannot remain impassive before legalized abortion because it leads to the death of innocent persons.

Homosexual marriage, on the other hand, is not clearly a more damaging sin than lying to your spouse or your child, neither of which are necessarily the basis of an action at law. I suppose my point is that there are lots of sins we wouldn't seek to regulate through the law and an instrumental state -- one that exists simply to maintain the peace -- need not take much interest in those sorts of things.

More later, but I'll leave space for others to comment.

Amy & Jordan said...

Homosexual marriage, on the other hand, is not clearly a more damaging sin than lying to your spouse or your child, neither of which are necessarily the basis of an action at law.

This really seems to be the crux of your position, and if it is cast within Aquinas' framework, is basically saying that criminalizing gay marriage is likely to cause more evil to break out than to not outlaw it.

Of course, the current situation, except for a few rogue areas, is exactly that: gay marriage is neither illegal or legal...the state does not recognize gay marriage but neither does it prevent gay couples from marrying (part of the misunderstanding relates to the idea that only government-recognized marriages are truly marriages).

I think there is a case to be made that the legal recognition, affirmation, and therefore promotion of gay marriage would be terribly destructive, both socially and individually. This is based in large part on a view of family as foundational to social structures and an argument that the fundamental nature of homosexual relationships undermines this social life.

This, I think, is what J. Budziszewski gets at when he says, "when a man puts the part of himself which represents new life into the cavity of another man which represents decay and expulsion, at the most basic of all possible levels he is saying 'Life be swallowed in death.'" (What We Can't Not Know, 86-87)

But beyond making that positive case, I think your position argues strongly for a baseline partiality to the status quo, in which the state really does not take much interest. It doesn't prevent gay couples from going to some like-minded church and having a ceremony and living together, but neither does the state give people tax incentives and compel employers to extend benefits to that couple either.

And yes, there are numerous other ostensibly Christian responses to the political issue, I merely intended, although I didn't state this explicitly, to give rough outline to positions that take a relatively positive view of the state and the church's engagement with the state on some level.

Tlaloc said...

everything would be so much simpler if we just removed marriage entirely from our system of government. Replace it entirely with a form of civil union and let marriage go back to being a private religious ceremony that each religion can define as it sees fit.

Everybody wins.

Which is of course why it'll never happen.

Hunter Baker said...

Jordan, the harm involved is clearly the area of real contention. My discomfort in dealing with gay marriage from a Christian public policy has to do with the fact that we are working from a scriptural proscription, but without a good social record or history to really help us out. Gay marriage is so unprecedented we really don't know what the outcome will be and thus we seem mean-spirited when we argue against it.

When it comes to the issue of children, it is clear that the married mom and dad is statistically superior to the other models like the divorced household or the never-married mom household, but we don't have enough gay mom and mom or gay dad and dad data from which to work. I suspect that when we do, the traditional family will continue to rate the best in terms of child well-being, but we just don't have that yet.

Amy & Jordan said...

Gay marriage is so unprecedented we really don't know what the outcome will be...

I think this fact in and of itself speaks to one way of arguing against it, at least theoretically. That is, its novelty is evidence against institutional governmental promotion of it. The burden of proof should be, I think, on those who wish to innovate with respect to social and legal norms, to show that gay marriage is as much as a socially positive force as heterosexual marriage.

Again, one of the clear points I wish to make is that the current situation is one which is perhaps the best case for gay marriage advocates, in terms of compromise with Christian principles. I can see no case in which a Christian perspective on the state would find it to be the state's role to provide economic and legal incentives for gay marriage. The best gay marriage advocates can hope for is for the state to not criminalize the behavior.

There's a related question of the prudence of resorting to a constitutional amendment and the resulting disregard for all questions of federalism. This, to me, seems like a cop out, and when conservative Christians resort to federal power instead of state's rights to settle controversial questions, it strikes me as no different than when any other lobbying group does the same thing. It speaks to an unwillingness to engage in the difficult and expensive work of state-by-state lobbying, and resorting to the "big stick" method of political advocacy. Perhaps this contributes to your rather negative take on the current state of Christian lobbying on this topic.

The last I checked, counties and municipalities issued marriage licenses under the auspices of individual states, not the federal government. It seems really just plain 'ol lazy to therefore argue that we need a federal constitutional amendment.

mjwatson said...

How can it be lazy to propose an amendment when it requires 75% of the states?

Regrettably, given the the track record of other court-imposed decisions, there is little reason to think that a federal threat to the independence of states and municipalities on this issue can be met with anything less than a federal response. Fortuntely the massive hurdle imposed by the Founders in the amendment process guarantees that local and state concerns cannot be railroaded.

Amy & Jordan said...


All good points I hadn't considered in detail. Perhaps I should have said "relatively" lazier.

The process for changing state constitutions probably is different on a state by state basis, I'm assuming, but may be comparatively more difficult than getting an amendment to the US Constitution approved by that state. I'll have to look up and compare what parts of the state governments are involved and what % each needs to pass.

There does seem to be a superficial resemblance to something like the Prohibition amendment, however, in terms of unilaterally imposing a law on all states regardless of individual state preference.

Hunter Baker said...

If only the left had been "lazy" when it came to legalizing abortion!

Amy & Jordan said...

Yes, I suppose the "laziest" method is so-called legislating from the bench...this now gives us a tri-partite framework for evaluating political advocacy: lazy, lazier, and laziest.

Hunter Baker said...

We could avoid all this agonizing if only we could get the court to declare the meaning of marriage for all time as they seem to have handled the "personhood" of the fetus.

James Elliott said...

"If only the left had been "lazy" when it came to legalizing abortion!"

Well, so much for what had been an interesting and educational exchange.

Amy & Jordan said...

By the way, this isn't my reason for raising the question of federalism.