Bench Legislation

By Regis Nicoll
8/1/2008

"The justices have ruled in favor of the sanctity of marriage and against bigotry. . . . This is good news for all Californians." (Rev. Susan Russell, rector of All Saints Episcopal Church)

WHAT HAS SELMA TO DO WITH CALIFORNIA?

On March 25, 1965, 3,200 individuals arrived on the lawn of the capitol building in Montgomery, Alabama. It was the end of a 50-mile, five-day march from Selma to protest discriminatory voting practices in the state. Five months later, President Johnson signed the Voting Rights Act of 1965, outlawing those practices.

On April 11, 2001, six same-sex couples approached the Superior Court of Massachusetts to file suit against the Department of Public Health for being denied marriage licenses. Two and a half years later, the court handed down a ruling legalizing same-sex marriage in the state. This past May, the California Supreme Court followed in lockstep.

What do these events have in common? Civil rights, say gay advocacy groups.

Their logic goes something like this: Marriage is an inalienable right protected under the equal treatment provisions of the Constitution. Traditional marriage laws discriminate against gays and lesbians. Hence, laws banning same-sex marriage are violations of basic civil rights.

Their logic gets two things wrong.

First, traditional marriage laws are no more discriminatory than drunk-driving laws that apply equally to the life-long alcoholic and the teetotaler. In the same way, everyone—whether gay, lesbian, bisexual, transsexual, or heterosexual—has a right to marry, just not with someone of the same sex.

Next, the notion that same-sex marriage is an inalienable right, conflates the difference between natural rights and civil rights.

A QUESTION OF RIGHTS

Civil rights are legal privileges granted by the State to promote the common good of the governed. They include the right to drive a car, vote, and drink alcoholic beverages.

Natural rights, on the other hand, are universal liberties—like the freedom of thought, expression, and religion—deserving legal protection from the State. Thomas Jefferson had in mind natural rights when he penned “We hold these truths to be self-evident: that all men are created equal: that they are endowed by their Creator with certain unalienable rights...”

According to the Framers, natural rights are not defined by, or derived from, the civil magistrate or popular opinion; they are rooted in the eternal law of God, and universally knowable in nature’s laws. They also understood that for a just society, our freedoms—in the words of John Locke—must be exercised “within the bounds of the law of nature.”

So what does the “law of nature” tell us about same-sex marriage?

LOOKING TO NATURE

It is argued that because examples of homosexual behavior can be found in nature, homosexuality is “natural.” Notwithstanding such examples, homosexuality is a departure from, rather than a conformance with, the law of nature—for several reasons.

First off, all sorts of things can be found in nature, from birth defects and disease to incest and cannibalism. Existence in nature does not imply normative with nature.

We have compassion for a child born with Down syndrome precisely because it is unnatural—not “unnatural” because it is rare or a result of non-natural causes, but because we sense it is not the way things are meant to be in the natural order of things.

Next, from natural considerations same-sex couples "don't fit." The obvious physiological differences between males and females attest that heterosexual couples are equipped (and designed) to come together and accomplish a natural function for which same-sex couples cannot fit. Nature multiplies and flourishes not from sameness but complementarity.

Sexual complementarity reflects the natural (read: “normal”) order affirmed by Jesus: “But at the beginning of creation God ‘made them male and female. For this reason a man will leave his father and mother and be united to his wife, and the two will become one flesh.’ So they are no longer two, but one” (Mark 10:6-8).

Lastly, if we insist on riding atop the moral gyroscope of the animal kingdom, there is nothing to correct wobbles created by rape, patricide and cruelty—to name but a few harmful behaviors—save our personal distastes. There is a reason we call certain acts “animalistic.”

That is why, as Dr. Martin Luther King so eloquently put it in his Letter from a Birmingham Jail: “A just law is a man made code that squares with the moral law or the law of God. An unjust law is a code that is out of harmony with the moral law.”

Does that mean that lawmakers must invoke the Bible in crafting legislation? No, they need only look to enduring principles of freedom, justice, and human dignity that are self-evident and have proven, throughout civilization, to be of net positive benefit to the governed—beginning with the family.

A TIME-TESTED INSTITUTION

The vitality of any civilization depends on the strength of the family. And, as time has shown, the best foundation for the flourishing of the family is traditional, heterosexual marriage. The committed, lifelong, and exclusive union between one man and one woman is the only structure able to produce children and prevent the psychological and sociological problems associated with STDs, divorce, adultery, fatherless homes, and single parent families.

Nevertheless, the numbing drumbeat from the gay community is that laws banning homosexual unions share the moral pedigree with the laws of a prior age banning interracial marriage. By associating their plight with interracial couples who won the case for marriage in Loving v. Virginia (1967), they argue for the moral equivalency of their cause and for the legitimacy of recent court actions.

JUDICIAL OVERREACH

Granted, the recent ruling in California (as in Massachusetts earlier) was similar to Loving, in that unelected officials overturned the will of the people by striking down popular legislation. But that’s where the comparison ends.

In the Loving decision, the court stuck down laws that unjustly excluded couples from marrying who could, otherwise, by their complementary physiology, fulfill marriage as it has been known from time immemorial.

In California and Massachusetts, the court invented a right to same-sex marriage, thereby redefining marriage, opening it up to include any combination of individuals willing to enter into a committed relationship. Whereas the Loving judiciary acted within its authority by interpreting law; the California and Massachusetts courts overstepped their powers, usurping the authority of the legislature, by making law.

These developments leave many Christians wondering how to respond. James A. Donahue, president of Graduate Theological Union, frames the question well: “How do you factor in the role of contemporary human rights, civil rights . . . [with] core traditions and beliefs?" Indeed, especially considering the recent finding that Christians are overwhelmingly viewed as “anti-homosexual.”

CHRISTIAN RESPONSE

It is quite telling, given the general complacence toward homosexual behavior in the first century, that Jesus never saw fit to expand marriage to accommodate the wants, desires and felt needs of those who felt excluded. Instead, as mentioned earlier, He reaffirmed the institution as it had been established in the beginning.

It is also telling that when Jesus talked about Old Testament imperatives, as in the Sermon on the Mount, He made them more morally encompassing (“he who lusts commits adultery”), not more socially inclusive (for they already applied to everyone equally!).

Although public perceptions do not affect the validity of Jesus’ teachings, they can be an indication of how His followers “come across” defending them. If our advocacy for marriage is driven by fear and animosity, our actions will be seen as harsh and judgmental; neither of which creates an “aroma” that will draw folks to the Lord’s table.

If, on the other hand, we are motivated out of love for people whose self-image and behaviors are out-of-whack with God’s design, our actions will be redolent of the Bread of Life. Unless our advocacy is fueled by a genuine concern for others, our voice in the public square will chafe like nails across the chalkboard.

But—and here’s the difficult part—genuine concern requires empathy that can only come from pulling up along side those who struggle with same-sex attraction to learn about their estrangement, loneliness, confusion, yearning for intimacy, and the powerful pull their desires exert over them; not to affirm misaligned desires and wrong choices, but to support, encourage, and love those who are imprisoned by the lies of our Adversary.

“If I speak in the tongues or men and of angels, but have not love, I am only a resounding gong or a clanging cymbal.” (1 Corinthians 13:1)

Regis Nicoll is a freelance writer and a Centurion of the Wilberforce Forum. His "All Things Examined" column appears on BreakPoint every other Friday. Serving as a men’s ministry leader and worldview teacher in his community, Regis publishes a free weekly commentary to stimulate thought on current issues from a Christian perspective. To be placed on this free e-mail distribution list, e-mail him at: centurion51@aol.com.