We continue our series on the meaning of marriage with another point of view. Though most evangelicals oppose same-sex marriage, they do not necessarily agree about how exactly to oppose it or how strongly to work against it. Here Daniel A. Crane, assistant professor of law at Benjamin N. Cardozo School of Law at Yeshiva University in New York City, explains his concerns regarding this issue. —Editors
With same-sex marriage licenses pouring out of City Hall in San Francisco before they were declared invalid, state courts inundated with claims of entitlement to same-sex marriage, a federal constitutional amendment proposed to define marriage as a heterosexual union, and the presidential candidates trying to mollify as many constituencies as possible on this hot potato, same-sex marriage certainly has our attention. Indeed, it's becoming a shibboleth.
A shibboleth is a single issue by which a political candidate or party is judged. The word comes from the biblical story of Jephthah and the Gileadites in Judges 12:4-6. Jephthah had routed Israel's foes from Ephraim and was determined to cut them down to the last man. The Ephraimites weren't obviously distinguishable from the Gileadites by physical appearance, and some tried to sneak through Jephthah's lines. So Jephthah devised a clever test: Any man trying to ford the Jordan was required to say the Hebrew word shibboleth, which means "a torrent of water." Since the Ephraimites mispronounced the word as sibboleth, they were easily identified and slaughtered.
When it comes to politics, we evangelicals love our shibboleths. There is a certain convenience in evaluating political candidates, organizations, and movements by their stand on some discrete social issue—think abortion, creationism, and Prohibition. Though reductionist, the shibboleth approach isn't necessarily irrational. If the shibboleth follows closely from a particular worldview, then it may be a reliable predictor about how the candidate, organization, or movement will react to other issues that people haven't had time to think or ask about.
But, before using a shibboleth, we had better be certain that it accurately encapsulates our worldview. The costs of choosing an improper shibboleth are high. Since the purpose of shibboleths is to create a broad rule of action by generalizing from a narrow assumption, error on the assumption means multiplication of the error many times over.
This is why I believe same-sex marriage is a dangerous shibboleth: It reinforces the status of government as the custodian of the institution of marriage. If the church not only abets but actively furthers the notion that marriage owes its legitimacy to the state's approval, then the battle for the family is all but lost.
The Divorce Analogy
Let's take for example the law of divorce. In the 1950s, C. S. Lewis and J. R. R. Tolkien debated Britain's divorce laws, articulating starkly different views on marriage. Tolkien believed that Christian teachings should shape Britain's legal definition of marriage, while Lewis held that secular marriage and Christian marriage are two very different things.
For Tolkien, "no item of compulsory Christian morals is valid only for Christians. The foundation is that this is the correct way of 'running the human machine.'" Tolkien believed that Lewis's arguments for separation between the secular and religious institutions reduced marriage "merely to a way of (perhaps?) getting an extra mileage out of a few selected machines." For Tolkien, "toleration of divorce—if a Christian does tolerate it—is a toleration of human abuse."
Since Lewis married a divorcée, first in a civil ceremony for one set of reasons (compassion) and some time later in an ecclesiastical one and for another set of reasons (love), it is not surprising that his views were different. Lewis believed in "two distinct kinds of marriage; one governed by the state with rules enforced on all citizens, the other governed by the church with rules enforced by it on its own members." Thus, for Lewis, Christians should be willing to tolerate civil rules about marriage that didn't meet biblical standards, since secular marriage was to be governed by an entirely different set of rules.
Who was right, Lewis or Tolkien? In my view, Jesus answered the question directly. Matthew 19 records that some Pharisees put a tricky marriage question to Jesus: Is it lawful for a man to divorce his wife for any reason, good or bad? The Pharisees saw a good chance to trip up Jesus, since he had already spoken out against divorce in the Sermon on the Mount, yet the law of Moses permitted divorce without enumerating a list of permissible reasons. Indeed, the only condition specified in Deuteronomy 24:1 was that the wife had become "displeasing to him because he finds something indecent about her."
In avoiding the trap, Jesus differentiated between God's original plan for marriage, set forth in Genesis, and the human institution of marriage. Moses, Jesus explained, granted the Israelites a right to divorce because their hearts were hard, not because divorce was part of God's plan for marriage.
Jesus' treatment of the marriage issue is significant because it recognizes that the spiritual institution of marriage is quite distinct from the legal institution of marriage—even though the legal institution is directly ordained by God. The legal institution of marriage accommodates sinful man's faults; the spiritual
institution transcends them and aims for the highest ideals in marriage. Further, the legal institution of marriage cannot be soft-pedaled on the grounds that Moses' law instituted the bare minimum necessary to ensure morality, whereas the spiritual institution goes further and dispenses grace.
As Jesus put it rather bluntly, the man who follows the law of Moses and gives his wife a certificate of divorce might cause her to commit adultery (if she remarries). Thus, Moses' law tolerated divorce even though, spiritually, it opened the door for people to become adulterers. In Jesus' view, there unquestionably was an important distinction between the legal and spiritual institutions of marriage.
The harms of equating the spiritual and legal institutions are large. Even if a union between the two were possible in a theocracy, it certainly wouldn't be possible in a pluralistic democracy where hearts are arguably harder than they were in Moses' day. The two institutions cannot merge, but what happens when the church treats them as though they were merged?
Sadly, recent history reveals the answer. Years ago many Christians began to view marriage solely through the legal lens. If no-fault divorce is the rule of the day, then Christians find it easier to break their marriage vows whenever they feel so inclined.
The example of divorce suggests that Christians have already lost much ground on marriage and the family by failing to distinguish secular family law clearly from God's perfect plan for man and woman. This is why it is alarming to see many Christians insist that defeating legal recognition of same-sex marriage is necessary to preserving the institution of marriage. If that is true, it must be because marriage owes its definition and legitimacy to the state—a proposition that Jesus squarely denied and that should frighten anyone who takes seriously the Genesis prescription.
Making It Work
If the church must clearly distinguish between the legal and spiritual domains of marriage, where does that leave us on same-sex marriage? One might like to see the government get out of the marriage business altogether, leaving the definition and consecration of marriage to private choice, meaning, in our case, the church. But that isn't a terribly realistic option today, since the idea of marriage so thoroughly permeates our legal system.
The words marriage or married appear more than 500 times in federal statutes, more than 900 times in federal regulations, and thousands of times in state statutes. The concept of marriage flows through numerous statutory and regulatory schemes, including areas as diverse as taxation, military service, Social Security benefits, adoption, and agriculture.
If the government can't get out of the marriage business altogether, then perhaps we, as Christians, ought to take the lead in reconceiving the notion of civil marriage as distinct from holy matrimony. Perhaps we should abolish the word marriage altogether when speaking of the license granted by the state and instead appropriate the civil union terminology that has been created to deal with the same-sex issue. When asking about the definition of marriage or civil unions for legal purposes, perhaps we should take a functional, rather than normative, view.
If a legal definition of marriage is necessary because we need to know who should be included in a health insurance plan or how we should assess potential adoptive parents, then the definitional question should be asked with respect to the objects of the legislation, not based on a transcendent conception of marriage.
For example, a statute dealing with health insurance benefits may be intended to extend health coverage to uninsured individuals in the same household as the primary insured. Since the object of the legislation is to make health insurance available to a wider group of people, it might make sense to recognize a wide group of civil unions as eligible for inclusion under the statute. Maybe even short-term or temporary civil unions should be recognized for that purpose.
On the other hand, a law making marriage a criterion for adoption is not intended to broaden the group of eligible participants but to narrow it to those most likely to be good parents. If the state concludes that children are most likely to benefit by having both a mother and a father and that heterosexual unions are more likely to be enduring, thus promising long-term stability, the definition of marriage might be narrower for adoption purposes than for health benefits purposes. In both cases, the civil definition of union or marriage would be answered by the particular aims of the legislature, not by the abstract question: "What is marriage?"
None of this should be taken as an argument that the law should recognize same-sex civil unions. There may be important functional (as opposed to moral) reasons why such recognition would be unwise. Nor should a separation of civil and religious marriage lessen our concern over the recent conduct of activist judges and mayors who have tried to impose their own political vision by judicial or executive fiat, contrary to the clear rules established by state legislatures.
But neither should we escalate the culture war by making this debate into a battle for the heart and soul of marriage. If we do that, we concede that the state owns marriage and that the church's function in blessing unions is subservient to the government's. Far better to lose the battle over the legal definition of marriage than to win it and find that the government now owns one of our most sacred institutions.
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Related Elsewhere:
Our Same-Sex Marriage and Marriage in America Hot Topic pages have more Christianity Today articles on marriage and same-sex marriage, including:
A Crumbling Institution | How social revolutions cracked the pillars of marriage. (Aug. 24, 2004)
What God Hath Not Joined | Why marriage was designed for male and female. (Aug. 20, 2004)
The Next Sexual Revolution | By practicing what it preaches on marriage, the church could transform society. (Aug. 27, 2003)
My Two Dads? Not in Florida | U.S. Circuit Court upholds ban on gay adoption (March 11, 2004)
Speaking Out: Why Gay Marriage Would Be Harmful | Institutionalizing homosexual marriage would be bad for marriage, bad for children, and bad for society. (Feb. 19, 2004)
Let No Law Put Asunder | A constitutional amendment defending marriage is worth the effort. (Jan. 26, 2004)
Massachusetts Court Backs Gay Marriage | Christians say gay activists will overturn marriage laws (Dec. 10, 2003)
'AMan and a Woman' | Activists say the Federal Marriage Amendment will be the defining issue in the next election. (Nov. 24, 2003)
The Marriage Battle Begins | Profamily and gay activists agree: Texas decision sets significant precedent. (Aug. 11, 2003)
Canada Backs Gay Marriages | Conservatives say decision could put pressure on dissenting churches. (July 16, 2003)
Marriage in the Dock | Massachusetts case on gay marriage could set off chain reaction. (April 25, 2003)
Christian Conservatives Split on Federal Marriage Amendment | Law would protect marriage from courts, but legislatures could still extend marital benefits to same-sex unions. (July 20, 2002)
Defining Marriage | Conservatives advocate amendment to preserve traditional matrimony. (October 1, 2001)
No Balm in Denver | Episcopalians defer debate over same-sex blessings for another three years. (July 17, 2001)
Marriage Laws Embroil Legislatures | New Englanders push for domestic-partner benefits. (April 26, 2001)
Presbyterians Propose Ban on Same-Sex Ceremonies | Change to church constitution, which passes by only 17 votes, now goes to presbyteries. (July 5, 2001)
Sticking With the Status Quo | United Methodists reject gay marriage, ordination. (May 15, 2000)
Presbyterians Vote Down Ban on Same-Sex Unions | Opponents say vague wording led to defeat. (March 29, 2001)
States Consider Laws on Same-Sex Unions California to vote on 'limit on marriage' in March (Jan. 10, 1999)
Presbyterians Support Same-Sex Unions (Dec. 10, 1999)
Pastor Suspended in Test of Same-Sex Marriage Ban (Apr. 26, 1999)
Same-Sex Rites Cause Campus Stir (Aug. 11, 1997)
State Lawmakers Scramble to Ban Same-Sex Marriages (Feb. 3, 1997)
Clinton Signs Law Backing Heterosexual Marriage (Oct. 28, 1996)
The Alliance for Marriage site includes a section on its proposed marriage amendment. The site also has collected press excerpts on the amendment.
The Defense of Marriage Act (DOMA) does two things: it provides that no State shall be required to give effect to a same-sex marriage law of another state, and it defines the words "marriage" and "spouse" for purposes of Federal law. It was passed in 1996.
In a 1996 Christianity Today column, Charles Colson said that "accepting same-sex relationships as the moral and legal equivalent of marriage will transform the very definition of marriage—with far-reaching repercussions."
Concerned Women for America have an archive of articles in response to the same-sex marriage issue.
