Lawyers, Professors and Citizens

When I first read Adam’s piece I planned to engage in the argument—we disagree on so many things. But, at this point I do not think that would be helpful, especially given the exchange between Adam and Mikhael. Instead I’d like to write to the readers about where I think we should go from here.

Long ago when I practiced law I spent a lot of time in the courtroom. This was a good place for me because I am by nature argumentative and competitive. I like to win. It was also a bad place for me because by nature I am argumentative and competitive. Winning is too important to me. Being a litigator brought out aspects of my personality that on my best days I work to suppress.

First of all, I thank Adam for sharing his perspective. It is now clear we have a robust debate on this question!  And while I disagree with many of the arguments Adam outlines in his essay, I appreciate his vigorous defense of traditional marriage and his willingness to engage arguments to the contrary.     

I value many aspects of Adam’s argument. His primary concern for the well being of children is evident in his essay, and is something all three contributors to this month’s discussion undoubtedly share. We all want children to grow in loving and nurturing families, though we may disagree on how to achieve this. His thorough analysis of certain facets of my argument was also constructive. While I do not have time to discuss each of his critiques in this response, his comments have enabled me to better reflect upon the various factors that inform my position on this issue. Lastly, the number of outside sources Adam included in his essay is impressive and no doubt helpful for readers who want to read further on this topic. I won’t come close to matching this number of sources in this essay.

In responding to Adam’s argument, I will leave many of the possible legal objections to Julia who has a legal background. My challenges to Adam’s argument come primarily from my interest in public policy. My concerns regarding Adam’s arguments are two-fold: 1) He confounds the goals of marriage with the goals of raising children. They are related but they are not the same and should be treated separately, and 2) he upholds an ideal of family that is unnecessarily exclusive and does not create opportunities for other members of society to love and care for children when this ideal is inevitably unmet. I outline each of these concerns below.    

 

The legal norms of marriage have always included the moral norms of natural law not because American evangelical Protestant Christians said so but because they are natural rights and duties arising from a biological reality: Sex between a man and woman has consequences, namely offspring. Marriage is pre-political and fundamental, existing in all known civilizations as a man-woman institution to link fathers and mothers to their children by binding them to each other for life.

Thank you for this opportunity to write about the issue of same-sex marriage through the eyes of faith. I’ve read all of the preceding articles and am grateful to everyone for their thoughtful pieces. I’m particularly appreciative of the constitutional perspectives provided by Kathryn Lee and Micah Watson. I write this piece taking the next step, applying their foundational arguments to the specific policy of same-sex marriage.

I am a political science professor and a lawyer.  For the past twenty-five years of my professional career I’ve written books on First Amendment jurisprudence and articles on same-sex marriage. And, one of the things that surprises me and keeps me interested is that my perspective on both of these topics has changed over time.  Partly my views have changed because my understanding of hermeneutics has changed. Partly my views have changed because I have had decades in which to have watched the Supreme Court’s decisions and their aftermath. I agree with Alexander Hamilton that the Court is the least dangerous branch of government because it has neither the power of the purse nor the power of the sword. And, I hold tightly the words of the Apostle Paul, that in this earthly life we see through a glass darkly; we see only in part.

Let me begin by stating the importance of this question for Christians as we begin to process the U.S. Supreme Court’s ruling on same-sex marriage. While the reaction to this court decision among Christians ranged dramatically from elation to dismay to heartbreak, this case presents an opportunity for all Christians to reevaluate how to extend love to gays and lesbians in both the public sphere and within the Christian community. I firmly believe that how Christians respond to this moment will define the relevancy of Christianity to the broader culture in the years to come. This issue will also be a critical test for church unity and critical dialogue in the face of a deep theological and ideological divide. 

This essay outlines two basic public policy positions on same-sex marriage. First, in order for gays and lesbians to fully participate in public life as equal citizens, same-sex marriage should be upheld as a fundamental legal or civil right. This position advances the principles of democracy, in which every citizen in society is involved in defining the common good. However, religious institutions that oppose same-sex marriage should not be compelled to support this public law. Thus, public policy should grant exemptions from participating in same-sex marriage ceremonies to institutions that are inherently religious. This position is consistent with the concept of principled pluralism, which reflects the diversity and differentiation of God’s creation. This exemption also provides space for the church to pursue a healthy and honest discussion on this issue.