Homosexuality & Gay Marriage in a Post-Christian Age

Posted on July 15, 2013 by

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From atop Olympus, which now sits at the corner of First and East Capitol in Washington, D.C., Justice Anthony Kennedy, in his infinite wisdom, let loose his latest thunderbolt, United States v. Windsor. In the majority opinion, Kennedy decreed Section 3 of the Defense of Marriage Act (1996) to be unconstitutional, thereby rendering the federal government unable to define marriage as only between a man and a woman. This bars the government from treating recognized marriages in Massachusetts (which allows homosexual marriage) differently from marriages defined in Texas (which does not) for the purposes of federal law or benefits. While Kennedy’s rationale was, let us be generous, imprecise, the rhetoric was unmistakable. Kennedy saw the federal law as evidence of animosity, bigotry, and without a rational foundation.

Windsor did not determine whether states are still able to define marriage as between a man and a woman. The Court ruled on issues of standing in Hollingsworth v. Perry, a case that revolved around California’s ban on gay marriage, so the question is not settled. However, Kennedy’s rhetoric seems to indicate, clearly, that he will have little more patience for citizens motivated by animus or bigotry (California’s Prop. 8 was a state constitutional amendment passed by voters) as compared to federal legislators. My best guess is the Court will, at the next easy opportunity, strike down state laws that define marriage traditionally.

While there is much to discuss on this front, and much to lament in the Court’s reasoning, the cultural direction seems clear, and only slightly nudged by the Windsor decision. Our broader culture has come to terms with homosexuality in general and homosexual marriage in particular. Tolerance seems to be the best description, although one could make an argument for outright approval, especially when it comes to sycophantic politicians, who might agree to disembowel and eat themselves if it yields a fractionally better electoral outcome during the next cycle. Remember, the leading lights of the Democrats–Bill Clinton, Harry Reid, and Barack Obama–all supported traditional marriage at some point. Clinton signed DOMA, Reid voted for it, and Obama opposed same-sex marriage when he ran for the presidency the first time.

For me, at least, the most interesting question is where does this leave Christians who are convinced that homosexual conduct is sinful and that marriage is divinely defined as between a man and a woman? First, there is the legal issue. Assuming the Court completes the process, and determines that states may not define marriage traditionally, there will be little doubt that as a constitutional matter, homosexual marriage will be settled, at least for now. Settled, though, does not mean finalized. The Supreme Court’s rulings are not chiseled into stone and handed down for us all to prostrate ourselves, trembling, before. The Court MUST be obeyed in order for the rule of law to exist. We, as citizens, do not have the latitude to choose which verdicts to abide by and which to discard. If we accrue to ourselves such a latitude, we become a nation of people and politics. Obedience, though, does not diminish our ability to work hard to change and cajole the Court so that it might reconsider the ruling. We can elect presidents who will appoint different justices, make arguments in the public square, and seek to instill in the next generation a different set of values. Not all of these options are necessarily practical, or maybe even wise, but these are legitimate ways to urge the Court to rethink these rulings, as it frequently does. Brown v. Board of Education, for example, overturned elements of Plessy v. Ferguson. As a model, see Abraham Lincoln’s speech on the Dred Scott ruling. Lincoln was convinced the Court erred in Scott, but he sought to maintain the rule of law in spite of his sharp disagreement. This is where, I hope, we find ourselves at the moment.

(Let’s be frank, however. Dred Scott, in retrospect, was out of step with history. Elevated senses of equality were slowly on the march across the Anglosphere, so it is unlikely Scott’s reasoning would have survived, even without the Civil War, more than a few decades. In this case, it appears that sexual liberty is ascendant, so Windsor is not counter-cultural in the way that Scott would have been. Regardless of what anyone thinks, the Court’s ruling in Windsor is in tune with our times. While that is not the most rigorous foundation for arguments, it makes the decision more difficult to challenge. Some might argue that Roe was also in-step with our culture’s changing sexuality, yet is still under consistent assault and public opinion continues to change on the issue, so there is hope for whittling away at Windsor as well. While anything might happen, I think abortion, due to the fetus, is a different moral category than homosexual conduct or gay marriage, and I think making an argument to protect the fetus has more common ground upon which to build as compared to arguments that seek to restrain private, personal sexual choices that do not, at least by definition, intrude on innocent third parties unable to choose.)

The next major question, if things play out the way I suspect, is where does this leave Christian liberty? We have a long, hard-earned tradition of religious liberty, rooted in the First Amendment’s protection of Free Exercise. One would think that Christians’ Free Exercise would be a sufficient bulwark against whatever pressure might come, but I fear that view is mistaken. The Court has not, so far, declared homosexuals to be a protected class of citizens, but if the U.S. Congress is unable to define marriage as between a man and a woman without running afoul of the Supreme Court, I am not sure how long Christians or others will be able to discriminate on the basis of orientation or conduct. Yes, I know we are dealing with governmental discrimination vs. private decision-making, but if the trend holds in the way I anticipate, that difference will vanish.

Remember, the biggest public relations victory for the gay rights lobby has been its insistence on treating laws that criminalize homosexual sodomy or that prevent homosexual marriage as a deprivation of equality, or, more broadly, civil rights. If this issue trends legislatively, legally, and culturally like racial or gender equality, we should expect to see even more legislation that strips away an organization’s ability to treat people differently based on a legally protected status or category. While religious organizations have been able to make hiring or admissions decisions based on their own religious preferences, when those preferences run afoul of legally protected groups, expect strife and conflict. My hunch is that within a decade religious institutions that are not churches will find it difficult to base employment or admissions choices that discriminate on the basis of sexuality, even if they can prove that their doctrine demands it, if the organization receives any aid or funding from state or federal governments. In the case of colleges and universities, this sort of funding would include, at minimum, research grants or student financial aid.

While churches will likely retain the autonomy to hire pastors and employees based on their own beliefs (since they can more easily claim to be engaging in religious exercise as they do so), churches and clergy may be targeted due to speech. We have already witnessed English and Canadian efforts to limit religious speech if it is overly critical of homosexuals or their lifestyles. While our general protections of speech and press have been more robust historically than either of those nations, that is no guarantee of future attitudes or decisions.

In some ways, this is unsurprising. We have been embarking, for the past several decades, on a cultural direction that defines religion as a private matter that is unsuited for the public square when it is anything besides “tolerant,” at least as defined contemporarily. Christianity, in this reality, is palatable only when it is loving, open, welcoming, and unwilling to draw boundaries between itself and the world that surrounds it. As Christianity moves farther away from a position of dominance, and closer to a marginalized belief system, Christians will have a series of hard choices confronting them.

We live in a post-Christian age. We better get ready for it.

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