A recent thread of comments on this blog has touched upon the potential legal implications of the ELCA pro-gay CWA09 resolutions on individual congregations that refuse to call or hire gay clergy or to perform any type of blessing service on same gendered partners. For my part, I have insisted that CWA09 resolutions are entirely irrelevant to the legal rights and responsibilities of congregations, especially in light of the long standing constitutional and statutory doctrine of the “ministerial exception”. Succinctly, this doctrine prevents courts from interfering in the hiring and employment practices of churches even when the practice would constitute illegal discrimination in the secular realm. CWA09 will certainly not change or soften that doctrine. Neither the courts nor ELCA synods will force local congregations to hire gay clergy over the objections of the local congregation. Any suggestion to the contrary is either misinformed or demagoguery.
On the other hand, when a congregation enters into the secular realm as a landlord or accepts governmental funding for particular programs, then the situation can become blurry. Without exploring the nuances of such instances, the point remains, CWA09 resolutions didn’t change the law. The legal rights and responsibilities of local congregations toward gay and lesbian persons will be determined by the courts according to their policies, procedures, and precedents, and the resolutions of CWA09 will not control the courts nor lessen the legal prerogatives of individual congregations.
Switching to another legal matter, marriage equality for gays and lesbians, the court decision last week that overturned Prop 8 in California was the subject of a couple of the Sunday morning network news talk shows. Since I’m usually busy on Sunday mornings, like many of you, I seldom watch these programs live. Thus, I’ll imbed a couple of videos of a pair of key discussions involving the two attorneys who successfully led the Prop 8 challenge. In case you hadn’t heard, these two high profile attorneys were the same two who opposed each other in the Supreme Court decision in 2000 that stopped the Florida recount thus allowing George Bush to become President. While many conservatives might be unimpressed by the involvement of Democratic attorney David Boies, his teamwork with well-known Republican attorney Ted Olson has been noteworthy. Each of these esteemed lawyers spoke yesterday.
First, I offer Ted Olson’s interview with Fox News’ Chris Wallace:
Second, I offer the debate between David Boies and Tony Perkins, the conservative leader of the Family Research Council on CBS’ Face the Nation.
Interesting debate.
I think that Luther’s Two Kingdoms would be an interesting application to the current debate. While I have opposed the recent changes in the ELCA, because I think it changes the nature of marriage as it is understood biblically, I have no problem at all with the civil rights of all Americans being articulated through the legal system.
Personally, I would like to see a term such as “civil union” used for both hetero and homosexual unions if they are presided over by a judge or court. I think marriage could and should be reserved for the church, although I know the history is controversial and we have this weird thing where every pastor signs a marriage license but so does a clerk of the state or county.
I would agree with Obie there are little chance of lawsuits in most cases, except as aberrations where someone might want to test a law. In the other thread, some public pavilions are cited, but I think that is a different setting than a sanctuary.
All us , whether gay or straight, are for the most part people of common sense. I dont’ see why a gay person would want a pastor to preside at a wedding if they knew he or she was against the concept. Or vice-versa.
I think Luther would have stood his ground in understanding marriage as it is understood in scripture, and while we we never know, I am not sure he would have approved of the changes in the ELCA. At the same time, he might well agree that states have every right to decide this for themselves.
Interesting conumdrum….do pro prop 8 folks WANT this to go to SCOTUS, knowing the conservative makeup of the court? Does SCOTUS, if it is truly conservative, leave it to the states?
I personally say the feds should stay out, and let states decide. If voters approve it , so be it. If not, then not. The issue in CA is do the voters have the last word, or the courts?
@Jeff
Not sure that the Biblical view of marriage is as static and uniform as you would suggest. The predominant marriage arrangement in the Bible was polygamous and patriarchal where husband owned wives. Biblical marriage was typically arranged by families and not by the individuals and the contractual nature predominated over any emotional component. Marriage as between two persons who chose each other (rather than being arranged by families) and based primarily on their love and affection for each other is a relatively modern and unbiblical concept.
Your idea that all unions should be civil and marriage reserved for those who desired the additional step of blessing from their religion has some merit.
While the current makeup of the Supreme Court is conservative, as you suggest, the swing justice (Kennedy) has authored several pro-gay opinions. In fact, the written opinion of the judge in the Prop 8 case closely mirrored Kennedy’s own language. So, the prop 8 court case has an excellent chance of being affirmed by SCOTUS when it gets there in a year or two.
Finally, I disagree with the way you frame the issue in your last sentence. It is a common fallacy and misunderstanding of constitutional government to suggest that the majority should always determine policy. It is the function of the courts to protect minority rights from majority exploitation. Would the US electorate have voted for desegregation in 1954 or was the Brown vs Board of Education decision of SCOTUS the only possibility to advance civil rights at that time? Or, as attorney Olson asks rhetorically in the above interview, would Fox News care to put its freedom of speech up to a vote of the electorate? Olson also cited the example of a 1960’s majority, electoral vote in California that allowed owners of real estate to discriminate on the basis of race in the sale of their property. The US Supreme Court overruled that majority electoral decision thereby protecting the rights of the minority. The very essence of the Bill of Rights is that individuals and minorities are assured those rights even when a voting majority might disagree.
An excellent editorial in the Chicago Tribune explains these consititutional protections more fully.
A reading of Federalist Nos. 9 and 10 would perhaps shed some light onto why the simple rule of the majority was not the only vision the Founders had for the country. These documents are considered valid interpretations of the United States Constitution as the Founders had intended it, and so are not to be discounted lightly.
@Obie
Well said, Obie. But the problem, as you and I know, is that Madison and the other founders never envisioned “litmus tests” for judges on either side of the aisle. Whether right or left, the first thing that happens with a nomination is the politics of said judge are examined. Depending on who is President or Governor at the time, usually the party in power has a big say in determining who gets the nod.
Also, we haven’t even touched on the whole issue of Constitutional interpretation. Like the scriptures, it all depends on who is reading it, and how they are reading it.
Thus, while I would agree about the issue of minority rights, I would say that the issue here goes to the nature of marriage itself. Is it a “rite”? Is it a “right”? And can it be redefined.
FInally, I take issue with the way you framed the issue of marriage in the scriptures. Yes, it is true there were polygamist kings, etc. And yes, many marriages were arranged… But it is a strawman argument to say that just because there were different types of marriage in the scriptures that then that means we can reinterpret it. Both the Old and New Testaments are clear, and Jesus only lifted up one example of what marriage should be . Nowhere did he say polygamy was ok, and in his lifting up the role of women he did not then redefine marriage. S
So yes, things were not static, but certainly we cannot then leap to the conclusion that anything goes…..Jesus affirmed marriage as between one man and one woman, and that is why civil unions should be a legal and state issue, not an issue to redefine in the church.
@Jeff
I think you significantly overstate the case when you say, “Both the Old and New Testaments are clear” in understanding marriage as one man and one woman. I think the opposite is true … the Old Testament clearly countenanced polygamy, and not merely for the occasional king as you suggest, but that was the standard understanding of marriage. “If a man has two wives …” implies a widespread and acceptable practice Deut 21:15.
Jesus’ attitude toward polygamy is very ambiguous. Of course, we have the famous Matthean statement, purportedly in the words of Jesus, that the whole law remained in force and the law clearly allowed multiple wives. Each of the synoptic gospels contains the pericope in which Jesus was questioned about the childless woman who kept getting handed down to successive brothers when her existing husband died. Arguably, the successive brothers already had their own wives. Of course, the point of the pericope had nothing to do with polygamy per se, but Jesus didn’t condemn it and the pericope seems to suggest that polygamy was still an accepted practice even in New Testament times. Or, consider Matthew 25 and the parable of the ten virgins. Were these ten “virgins” (in the original Greek) to be bridesmaids (as the NRSV translates) or wives of the soon to arrive bridegroom? Not clear.
When Jesus condemns divorce, it is not clear whether the husband has one or more than one wife. In fact, Jesus refers to the law that “allowed you to divorce your wives” (plural not singular) Matt 19:8. You are correct in asserting that “nowhere did he say polygamy was ok” but similarly he never condemned it either.
The pastoral epistles, dating from the late 1st century or early 2nd, suggest that bishops, deacons, and elders should only have one wife, but it is not clear whether that refers to divorce or polygamy. If the latter, then polygamy must still have been a widespread institution if the epistle needed to insist that bishops, deacons, and elders should refrain from the practice.
I think that you make some assumptions about “Biblical marriage” that fall apart when scrutinized, and your assertion that “both the Old and New Testaments are clear” is a gross overstatement. Would that you would have it so does not make it so.
Finally, you retreat to that tried and true refrain that when exegetes find ambiguity and nuance, we therefore claim “that anything goes”.
Those are your words, not mine. It is an unfair criticism of serious Biblical scholarship that ambiguity and nuance are equivalent to “anything goes”.
Bottom line: claiming “Biblical marriage” as the timeless standard for what the institution of marriage ought to be in the 21st century is a house built on sand.
And, the Old Testament is very clear about the practice of Levretical (sp?) marriage whereby the brother of a deceased man HAS to take his brother’s wife to bed, as his wife, and get her pregnant – whether or not he’s already married. That commandment was honored, and it sure isn’t the “one man, one woman” type of thing. So, any assertion about the “one man, one woman” thing being some sort of “Biblical standard of marriage” is misleading at best, and does not display a careful reading of the ancient texts – which were the ONLY texts at the time of Jesus.
@Obie, @Keith
Of course, proof texting is easy in pulling out the verses you want to quote. When Jesus spoke of upholding Genesis 2, he was very clear about it. When he did speak about marriage, this is what he said. Of course, many will claim he didn’t say it, or Matthew did, or the like.
Funny, people don’t like quoting the Old Testament about Leviticus, but they will quote it to support polygamy. Go figure.
@Jeff
You’re really grasping now.
I cite the OT not to support polygamy but to show that it existed as an accepted institution of the times. To the extent that the OT promotes the practice of polygamy, I believe it is culturally conditioned and not authoritative for the 21st century, which is the same comment I would have for the Levitical abominations.
@Jeff,
I don’t think Keith is saying that Christians MUST follow the marriage laws stipulated in the Law. It’s an example of varying marriage practices. Luther said Levitical laws didn’t apply to Saxony but only to the Jewish nation. Even so, Luther thought some of the OT laws were well worth following in his day the marriage of a deceased brother’s wife being one example. It wasn’t primarily about sex but seeing that the widow was provided for. As most know, Luther at least in one case, affirmed bigamy and I believe performed the wedding rite. That one was about sex.
I am not grasping anything except a nice cold one in the 104 heat in about four hours…..:)
“He who marries the spirit of the age becomes a widower in the next”. I don’t disagree there were varying practices, but trying to argue that Christ upheld anything other than that of Genesis, the facts are just not there.
History is written by the winners. What is culturally conditioned is sometimes bad, and sometimes good. But somethings stand above the culture, and indeed should transform it. I don’t have to spell out what that is, I would hope.
And let’s not get stuck in the Old Testatment. In addition to the Gospels, 1 Corinthians and Ephesians do a pretty good job upholding marriage. In fact, leaving the bible aside, just take all of Western Civilization in terms of what marriage should be.
As stated before , all Americans are entitled to civil rights and civil unions. Kingdom of the World. But don’t try to argue an insubstantial case about marriage in the NT not being defined. It is defined.
Unless you want to argue about the meaning of “is”.
“Western Civilization” notions of marriage are also not as cut and dried as you seem to think they are.
@Jeff
Oh, they will. They soon will.
I agree with Ann. If you do your family tree, you will undoubtedly find that marriage one or two hundred years ago was somewhat different from the concept today. Women didn’t have any rights. Young women often married older widowers at the request of their families. Young teen age girls were often farmed out to work for others with little or no pay. Sometimes they were raped or expected to marry into the family they worked for. Widows had to remarry or starve. Yes,we have those wonderful family photos with all the 12 kids on them. But don’t forget to look at the expression on Momma’s face. Not many are smiling. If she happened to be the second or third wife, then the older siblings might not be in the picture.
I thank God for civil rights for women even if some people have gone too far with it.
@Lilly
With the divorce rate in America at 64% , we have a lot of work to do in the area of marriage and family. Again, civil rights for all Americans , including all minorities, is a different issue than redefining marriage.
@Jeff
I agree. Both my kids were divorced and I saw what an agonizing struggle they went through. My daughter didn’t have to divorce her transsexual husband but she is much happier today with her straight man. My son married for lust and because a baby was on the way. It didn’t last but last Sunday that baby became an Eagle Scout. The difference today is that 100 years ago women were expected to stay in an abusive marriage unless they were being badly hurt. Now a lot of today’s divorces have more to do with being bored with each other or not knowing how to work out the family finances. I am sure that if same sex marriage becomes allowed, there will be a good many divorces among them too. A couple years ago I went to a wedding that was a covenent marriage. The covenent was that if things got rough in the marriage- they were bound by the covenent to get marriage counseling and to try to work it out. Right now I am concerned about the number of single mothers and fathers in the country. Marriage has already been redefined by society. Marriage seems to be about having a huge party and then try to pay for it the rest of your life. There aren’t any easy answers out there. But we need to start addressing them.