Advancing Biblical, Civic Justice Even If You Believe Homosexual Relationships are Sinful

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.

One more identifier: I was raised in the Christian Reformed Church but now am part of the Presbyterian Church USA, a denomination that recently voted to allow pastors to marry same-sex couples. I used to believe that homosexuality was a result of the Fall; love the sinner but hate the sin.  I no longer believe that this is the correct understanding of Scripture. But, I argue that no matter what Christians think about homosexuality, we should all support the legal recognition of same-sex marriage as a matter of Biblical civic justice.

The first part of this essay explains why I believe all Christians should support same-sex marriage as a matter of policy. The second part addresses the Supreme Court case Obergefell v Hodges, and the third comments briefly on living in the midst of our confusion about homosexuality.

What Does God Want Government to Do?

This may seem counter-intuitive but I’d say you can’t start a conversation about same-sex marriage policy by focusing on marriage.  You have to start by looking at the foundations of public policy: what is the government supposed to do?

Christians have engaged in public policy discussion in a lot of different ways and sometimes it is hard to tell how Christians differ from the rest of the country in their argument about certain issues. But, when Christians talk about a biblically based role for government (as opposed to issue advocacy) they generally fall into one of two categories: theomony or pluralism.

Theonomy

Some Christians believe that God intends their Christian worldview to be the law of the land. They point to the Old Testament laws of Israel and argue that if something is a sin it ought to also be illegal. Government and church are not differentiated. God’s desire for one is the same as God’s desire for the other. 

These Christians would argue that same-sex marriage ought not to be legally recognized. Homosexual relationships are wrong; therefore, government should not recognize these marriages.

Though I disagree with this approach to government I respect it when people are consistent in their effort to make sin or wrongs illegal.  If one says that God forbids homosexual relationships—thus they should not be legitimated by the government—then one must also say God forbids lust, greed, failure to care for the poor and so forth.  If Christians emphasize the use of government to achieve all of God’s directives in life then they are consistent in their understanding of a biblical view of government. I might disagree, but I can respect the fact that they are not cherry-picking which sins should be restricted by government.  

Pluralism

There is, however, a different biblical approach to government, one that has its roots in Reformed sphere sovereignty and Catholic subsidiarity. It has been advanced most practically by theologian and Prime Minister Abraham Kuyper of the Netherlands and it focuses on biblically based pluralism. This approach takes Scripture seriously but it differentiates between God’s will for government and God’s will for the church. Christians in this tradition say that God is Lord of all creation, including government. But, they argue, God created a lot of different institutions and these institutions all have their own God-ordained functions. The government is not a church. While a church’s function is to help a body of believers worship God and follow God’s commandments, the function of a government is to establish justice. And, the justice that a government should seek is for everyone, not just the Christians.

This perspective involves two kinds of pluralism: institutional and confessional pluralism. 

•  Institutional pluralism draws from a Reformed theological concept of sphere sovereignty to demonstrate that in public life there are many different ways in which we engage the world.  We are family members; we worship; we can be entrepreneurs.  And, it is important to remember that the institutions that support these activities have different responsibilities.  A church is not a family; a family is not a business; a government is not a church.  Our responsibility is to think through the different callings of these different institutions.  God’s creation can flourish only when there is room in society for people to function in all the different capacities that God has called them to.
•  Confessional pluralism means that while we live in a broken world we recognize that people have to have room to live according to the worldview they feel called to. For Christians thinking about citizenship the important question is what sorts of responsibilities do governments have toward people of other worldviews and faith traditions?

 The Biblical foundation for this kind of pluralism is centered in three different places.  First, the Old Testament is filled with directives from the prophets that demonstrate civil authorities have a responsibility to the poor, the sick, and those without power.  The books of Micah and Amos are replete with commands to those in authority to do justice and to let justice roll down like a river.  Isaiah 65 describes for us what a good city should look like: the people are healthy and live to an old age; conflict is handled and peace reigns; the vineyards yield fruit; people will not labor in vain but will enjoy their labor and live in houses that they build. Justice is connected to healthy, flourishing communities. 

Second, Christ’s life demonstrates that the Kingdom of God is not to be brought about by the sword.  Christ used stories, persuasion and encouragement to demonstrate what our lives should be in this world.  Political pluralism is a tool that protects other institutions as they engage in other kinds of persuasive work.  The church has room to be what the church is called to be. Families and businesses have room to flourish in the way that they are called. There is room to share the love of Christ and to act in accordance with the way Christ calls us to live, but there is not room to coerce others to do the same.

 Third, in the parable of the wheat and tares (Matthew 13) Christ shows us that it is not our job to separate the wheat from the weeds.  In this parable the farmer’s workers asked if they should pull out the weeds from the fields.  The farmer said no.  So, the sun and the rain fell equally on the wheat and the weeds until the harvest. Political pluralism allows public, legal justice to fall equally on everyone in society, even if we consider that some of the people are weeds. 

Applying pluralism

So, as we apply this pluralism to our view of government we have to consider the responsibility of all these different institutions.  And, we have to think about what it means to do justice to people of worldviews other than our own.  Christians want government to recognize our right to shape institutions like schools, churches and non-profits according to our own worldview, but we also have to challenge ourselves to determine whether we are supportive of the worldview expression of other groups in society.  Is it more Biblical to encourage freedom of worldview no matter what the foundation of that worldview might be (pluralism), or is it more Biblical to support only institutions that reflect Christian presuppositions (theonomy)? Is the public square intended by God to be for everyone (pluralism) or mainly for Christians (theonomy)?

I fall into this pluralism approach to government and I strongly support the legal recognition of same-sex marriage.  I believe that all Christians no matter what their beliefs about homosexuality ought to support same-sex marriage as a matter of justice. The focus has to be on thinking about what it means to do justice to all people who are functioning in loving, committed relationships raising children, caring for each other and fulfilling all of the responsibilities that exist in marital unions. If the government chooses to benefit heterosexual marriages in particular ways then homosexual relationships functioning similarly should be benefited in exactly the same way.

 God created us with the ability to engage in political community and this engagement carries not just rights but obligations.  People in this pluralism perspective argue that Christian politics means that we must not look for privilege for our own perspective, whatever that might be. Rather we must seek to live with others in a fallen but redeemed world, sharing public goods and advocating for the well-being of all people. This requires that we listen to them about what their well-being entails. And, I’d say that Christians should be enthusiastic in their eagerness to achieve justice for LGBT people that have long been loving each other, caring for each other and raising children in ways that have benefited society over hundreds of years.

Obergefell v Hodges: a Supreme Court victory for public justice

I can’t talk about same-sex marriage policy without commenting on the most recent Supreme Court case. I know that a number of Christians were angry about the Court’s decision in Obergefell.  This anger seems to stem from two different sources.  Some were angry as a policy matter; they did not agree that LGBT unions should be recognized as marriage. Others were angry as a jurisprudential matter.  They felt that the Court overstepped its bounds in making this decision—a decision that ought to belong to legislators rather than judges. I disagree on both counts.

In June the U.S. Supreme Court ruled that marriage is a fundamental right and all states must recognize same-sex marriage. (Obergefell v Hodges) I like the public policy outcome because I think that it achieves justice for people in the gay community. I would also say that this case took an important step toward pluralism because the justices made some effort to outline protection for people of religious faith who do not support homosexuality. As a matter of jurisprudence I would point out that the Court based its decision on the Constitution’s 14^th Amendment Equal Protection clause.  The purpose of the clause is to step in when majorities use their power to withhold equal protection of the law from minorities. Its very purpose is to control majoritarian legislatures—this was the intent of the Framers when they instituted the Bill of Rights and it was the intent of the framers of the 14^th Amendment in the wake of the Civil War.

I appreciate the Court’s work. But, I do have some concerns about the opinion itself. The Court’s decision did little to guide us in balancing the rights of the gay community with the interests of conservative religious people. This balance is at the root of a lot of conflict in the areas of employment and consumer protection. It’s also at the root of a lot of upcoming litigation.

Normally a Supreme Court decision not only settles an issue but gives guidance about how similar conflicts should be handled.  Those of us watching Obergefell expected the Court to do one of two things. It might have said that LGBT claims should be decided using a low level constitutional test called rational basis. When the rational basis test is used, government policy often stands even when it seems to discriminate. Or, the Court could have said LGBT claims receive the higher level strict scrutiny test. If strict scrutiny is invoked the group that brings the claim usually gets the discriminatory government policy tossed out. These tests are important because they let us know how to consider government policies that protect employment or consumer protection rights of LGBT people. 

In Obergefell the Court used neither test. The majority decision was a beautiful policy argument but it was not a legal argument. That’s disappointing for two reasons. First, it gives critics a lot of fodder for complaint and new litigation. Second, it misses an opportunity to provide important guidance for upcoming conflicts. It’s particularly frustrating in this case because there were a number of strong constitutional, legal arguments in favor of the Court’s decision. These arguments were laid out in briefs by parties arguing before several lower courts over the course of the last four years.  The briefs invoked not only both rational basis and strict scrutiny but, confusingly, a number of test levels in-between. Those arguments are so complicated and we really needed guidance about how to move forward.  Sadly, the Court’s decision did not help us.  There will be tons of litigation to follow.

Hermeneutics: a final comment on confusion about these matters

Because I teach at a Christian institution that values different Christian perspectives I have a vested interest in figuring out if Christians of different views on this topic can live and work together.  To some Christians, diversity on LGBT matters means a lot of straight Christians with different perspectives.  But, I do not think this works at all.  I think we have to have gay Christians among us to help us learn about and think about these matters.  These gay Christians will have to be very very strong in the face of those who disagree with them because disagreement might feel like rejection of the person.  But, I think this is the only way. It’s the only way because many of us, over the course of our lives, will see our perspectives change. The Church has to be a community that believes God is big enough to hold us even in our questions on these matters.

I said at the beginning of this essay that for me hermeneutics had changed. I was raised in the Calvinist tradition and in my community Scripture was to be read as literally as possible.  This created some challenges and we didn’t always handle the challenges well or with consistency. In my community God was male, and gendered differences were God-ordained with the female equal but not permitted to lead as the male does. The earth did not have four literal corners but it was a young earth created in seven days.  We kind of skipped over the dinosaur issue. And, we totally skipped over all questions of gender, sexual identity, and gender dysphoria. I was in my 30s before I knew anything about these matters which is particularly appalling because I am an academic. For much of my life I accepted uncritically the belief that gay people were gay as a result of the Fall.  Being gay is not what God wants for us and if someone is gay that person must live a celibate life.

Then, I met gay Christians and this led me to do two things. I learned more about sex and gender. And, I started to read works by Reformed theologians William Stacy Johnson, James Brownson and Jack Rogers. My understanding of how God created the body changed. My understanding of how to read Scripture changed. I now believe that LGBT people are made in the image of God just like everyone else.

This whole process for me took about twenty years. And, in the midst of it all I did not really know what to think about the issue of same-sex relationships of people who professed to follow Christ.  Because of Christian pluralism I have always believed that same-sex marriage should be legally recognized but I didn’t know what that meant in the church.  Should same-sex couples be allowed in the church?  Was that condoning sin? How should we think about Christians who were gay and in relationships?

During that period someone who has been a mentor to me said something that was powerful and I close with it here because I know that a lot of readers are in the same place that I was. This man said, “I do not know which approach is the right one. But, I do know that if I err, I choose to err on the side of loving and accepting those who follow Jesus no matter what their sexual identity.  When I stand before God I would rather defend myself having made a mistake by accepting gay Christians as full brothers and sisters at the table of God than defend myself having made a mistake by rejecting them.” 

That was persuasive to me.

 1. The U.S. organization that most closely represents this perspective on government is the Center for Public Justice in Washington D.C.  However, I do not speak for CPJ in any way.  I know that my perspective on the issue of homosexuality and same-sex marriage is different from theirs.

2. There is some disagreement among Christians in this pluralism perspective.  Some would say we can grant all the public, civil rights of marriage without actually calling it “marriage.”  To them marriage is a distinctively male/female institution. But, others say this is not full justice and elevates biology over the relationship aspect of marriage. They would say true justice occurs only when the legal term of marriage is offered to all. 

3. I anticipate that our next postings will relate to the rights of religious conservatives after Obergefell.  The story of Kim Davis, the county clerk who would not sign same sex marriage licenses is important, as is the litigation by Christian business owners who do not want to serve same-sex wedding clients.