This morning the U.S. Supreme Court handed down two decisions that will have a great impact upon the legal status of same-sex couples in the United States. In United States vs. Windsor, a 5-4 ruling struck down section 3 of the Defense of Marriage Act (DOMA), which was signed into law by Bill Clinton in 1996. Section 3 defined marriage for the purposes of federal law as between one man and one woman, and the justices invalidated that law as unconstitutional, claiming that it violated the equal protection clause of the Fifth Amendment. In practical terms, same-sex couples who are legally married in their respective states will be able to file federal income taxes jointly and to receive Social Security benefits. In the second case, Hollingsworth vs. Perry, the court did not rule directly upon California’s Proposition 8, but rather held that the defenders of the law who originally brought the case to trial in an attempt to force state officials to uphold Proposition 8 did not have standing to do so. The decision effectively makes Proposition 8 a dead letter by deferring to the authority of state officials who chose not to enforce the law. While the final outcome is uncertain in this case, it may open the door to overturning Proposition 8 and making gay marriage legal again in California.
While others will provide insightful commentary and analysis upon these decisions, these landmark rulings provide an opportunity to reflect more deeply upon the place of theological claims vis-à-vis the political and legal issues involved in these cases. We are clearly in the middle of a fairly rapid cultural turning point regarding the moral and legal status of same-sex couples, and the views of many Americans are tethered to and influenced by the underlying theological issues that inform their opinions. Despite the plurality of voices within these theological debates, one thing seems certain: what was once taken as a commonplace definition of marriage as between one man and one woman can no longer be assumed.
When it comes to analyzing these cultural shifts, it is important to recall several distinctions that will help to inform the best possible theological and political ways of engaging and responding to such cultural phenomena. First, there are the distinctively theological questions regarding homosexuality and same-sex marriage, but it must be remembered that these are separate from, even as they remain tethered to, questions of morality, politics, and law. Indeed, as Jean Porter has demonstrated in her recent book, Ministers of the Law (Eerdmans, 2011), there is an essential and necessary autonomy of the law vis-à-vis moral and theological concerns in the legal tradition that has developed in Western, democratic political and legal institutions. It should be noted, moreover, that benefits accrue both to the church and the state from such legal autonomy. The common thread that keeps these four realms of inquiry and practice – theology, morality, politics, and law – loosely tethered together is precisely the common goal of pursuing and securing the common good for all members of political community. If we bring the notion of subsidiarity from Catholic social thought to bear on this issue, we can recognize that theological, moral, political, and legal means of inquiry and practice each work to achieve that common good in its own distinctive manner.
So what does this mean for theological engagement with the cultural question of gay marriage? The first thing it means is that theological arguments – or better, moral, political, and legal judgments issuing from theological claims – have both a necessary and limited scope in the ongoing development of our legal and political institutions. Moreover, this is not a modern phenomenon resulting from the emergence of the secular state in the 17th and 18th centuries, as some would have us believe. Rather, there is an essential ambiguity with regard the role of political power vis-à-vis the church’s mandate to preach the Gospel, which we can find traces of in the Gospel itself (cf., John 18:36), noted by Paul (Rom 13), and most fully articulated by Augustine in The City of God. Contrary to those who saw the conversion of the Roman empire as an unmitigated good and sign of divine providence (such as Eusebius of Caesarea), Augustine claims a limited use of the peace, or when necessary the sword, of the earthly kingdom only insofar as it promotes the spread of the Gospel, the heavenly city. Thus, I believe the critical question for Christians to be asking in the midst of this culture war is whether or not the way we are engaging in this debate helps or hinders the church’s mission to preach the Gospel.
I believe that efforts on the part of individual Christians and church leaders (and here I can speak more specifically as a Roman Catholic moral theologian in the state of Minnesota, where in November voters narrowly rejected a constitutional amendment similar to Proposition 8 and where the state legislature just legalized gay marriage, effective in August) to solidify the legal definition of marriage as between one man and one woman has neither served to promote the common good nor to facilitate the preaching of the Gospel. Even if one agrees with the theological and moral arguments against same-sex marriage (and there is clearly not consensus here), it has not appeared obvious to the majority of Christians that this necessarily entails prohibiting it in a civic and legal arena. The Supreme Court decisions offered today reflect this general public sense that same sex couples deserve the equal protection conferred by the Fifth Amendment – regardless of the theological and moral issues involved (which the courts are not competent to judge anyways).
If I were to offer my opinion with regard to the best way for theologians and church leaders to move forward following today’s rulings, it would be to reassess our rhetoric. For those opposed to civil recognition of same-sex marriage, the argument that allowing same-sex marriage will have a negative impact upon the common good of society has been found unconvincing, not least because there is little tangible evidence to back it up. And there is no logical step from a theological argument based on Genesis 1 to inscribing “one man, one woman” into civil law. For those of us who support the extension of greater legal protections and rights to same-sex couples, we need to refrain from gloating and find ways to remain united as a church with a common goal of spreading the Gospel even amidst vehement disagreement.
Finally, and my last point applies to those on all sides of the issue, it is becoming increasingly apparent to most (though not all) Christians that homosexuality and same-sex marriage is not a central concern of the Gospel itself. The biblical references in Leviticus and Romans are ambiguous at best, and a natural law argument that can cut both ways has not created consensus on this issue. Thus, perhaps the better place for us to focus is to seek humble, authentic, and inviting ways of living out the Gospel. In my own Catholic tradition, I am encouraged by some of the ways in which the efforts of the New Evangelization are challenging us to re-envision the most effective means of engaging in cultural and political change. Authentic Christian identity and growth cannot be sustained by particular political agendas and commitments, but only in witness to Christ’s cross and resurrection. We will do well to keep this point of unity in mind as the theological, moral, political, and legal aspects of the issue of same-sex marriage continue to be worked out in our culture.
Thomas J. Bushlack (Ph.D., University of Notre Dame) is an assistant professor of moral theology at the University of St. Thomas in St. Paul, MN and a contributor to http://catholicmoraltheology.com/.