Ponder Anew 1!

David R. Larson            Loma Linda, California 

Observation 

 

How [Not What!] Christians Should Think About Legalizing Same-Sex Marriages

By David R. Larson

It is not my purpose in what follows to make a case either for or against legalizing same sex marriages in the United States today. Because so many others on all sides of this controversy are effectively presenting their views, and because I have already expressed my own convictions on this subject, I feel no need to address this aspect of the issue again. 

I would like to suggest how those of us who are Christians might go about making up our own minds on this and similar questions regarding public policy.  In other words, I now hope to participate in these conversations by making suggestions that are more procedural than substantive.

We Christians have ethical convictions, as do all others. "Which of our ethical convictions should we try to make the law of the land?" is the question we are now considering. As if to underline the complexity of this query, two answers that immediately spring to mind do not stand up under scrutiny. 

One inadequate answer is that we Christians should try to use the coercive power of the state to enforce all of our ethical convictions on all citizens.  Because we would rightly object if others did similar things, we should not try to make it a crime to worship false gods, pay homage to graven images, take God's name in vain or violate the Sabbath, for instance.  About this there should be little debate.

Another inadequate answer is that we should try to use the state's power to enforce none of our ethical views.  To the contrary, like other people, we Christians have a moral right to live where theft, murder and bearing false witness in courts of law are illegal.  We want these activities to be outlawed, and justifiably so.  It is therefore a mistake to say that we cannot, or that we should not, legislate morality.  

This suggests that the best answer is that we Christians should try to use the law to enforce some of our ethical views.  But which ones?  How should we decide?  From a theoretical point of view, these are the important and sometimes difficult questions!  How we answer them can have important practical consequences for our private and public lives as well.

One of the first things we need to answer is that in liberal democracies like the United States the default position should be liberty. "If in doubt, go without" is a good general guideline when wondering whether we Christians should try  to pass a law in such settings.

This cultural priority reflects the specific traditions and values of liberal democracies. Perhaps other societies with other histories and preferences can rightly make something other than liberty their default position; however, in liberal democracies like the United States, at least for cultural reasons, the presumption rightly favors liberty and the burden of justification properly rests with those who advocate laws to restrict it.

This cultural emphasis upon liberty emerged gradually and unevenly in the history of the United States.  It was not a high priority for the very first Europeans in North America, whether they were Roman Catholics headquartered in New Mexico or Protestants who began living a bit later in New England.  Generally speaking, these early settlers valued religious, ethical and political liberty, but only for themselves.  The intense conviction that the New World should be explicitly Christian in form and substance usually guided their thoughts and actions.  This idea is alive and well in our own time. As it always does, it is surfacing again this political season.  

A second tradition developed in Virginia and nearby vicinities.  In that context, leaders like Thomas Jefferson were often religiously skeptical.  Weary of religious arguments and wars, particularly those that had ravaged Europe since the Protestant Reformation in the sixteenth century, they preferred to limit the public expression of religion to what we sometimes call "ceremonial deism."  The thought of transplanting the religious conflicts of Europe to North America filled them with apprehension.  Not because they deeply respected orthodox Christianity, but because they feared its destructive excesses, they attempted to erect a "wall" between church and state.

Under the leadership of Roger Williams, a third North tradition began in Rhode Island.  A well educated and sometimes impatient clergyman who had migrated from England to North America, Williams believed that "forced worship stinks in the nostrils of God."  Because he objected to Christianity's use of the governmental power in Massachusetts, and because he insisted the English monarchy had no legal or moral right to appropriate and distribute land in New England without purchasing it at a fair price from the Native Americans, he was forced to found his own settlement.  

At Rhode Island, Williams was unlike his earlier Puritan neighbors to the north because he championed religious liberty.  He was also unlike the "ceremonial deists" who emerged somewhat later to the south because he was a fervent, and sometimes overly intense, Christian minister.  

In his old age, Williams rowed a boat thirty miles across a bay to spend several days in theological debate with Quakers with whom he disagreed and then rowed himself the thirty miles home.  Although he differed with them theologically, Williams guaranteed these Quakers a place where they could flourish in safety and liberty.  It is not for nothing that the oldest Jewish Synagogue in the United States is in Rhode Island.  Williams believed that Christianity should use persuasion in the community at large, not coercion.   

The cultural history of the United States consists in large measure of the continuing contests among these three differing visions of what the nation should be.  Over time, partly because of principle but mostly for practical reasons, a consensus has gradually emerged that each citizen should possess and grant to others as much liberty as possible.  In the United Kingdom, where a change is underway from thinking of the monarch as "The Defender of the Faith" (singular) to "The Defender of the Faiths" (plural), a similar development can be seen.  There is, therefore, a cultural presumption in favor of liberty in these North Atlantic nations.

Although we have not always recognized this, we Christians have theological reasons for making liberty the default position whether or not we live where this has become the cultural preference. We believe that each human person is created in the image of God with a power to think and to act; therefore, each citizen should be guaranteed as much liberty as is compatible with all other relevantly similar citizens possessing liberty to the same degree.  This is one way we ought to respect that which is of God in each individual. 

Each citizen, Christian or not, is autonomous. This does not mean that he or she is radically separated from all others. Neither does it mean that he or she should not consult with others. It does mean that each citizen should be as free as possible to live as he or she deems best. 

For both cultural and theological reasons, then, in liberal democracies like the United States it is not enough to ask what the majority of citizens prefer. Even if a majority of voters want a law, it is not necessarily the case that they should get their way. The presumption in favor of individual liberty is very strong. In addition, the rights of minorities must be protected.

Because our laws should favor "liberty," legislators should not pass laws just because they can and we Christians should not ask them to do so; they should pass as few laws as possible and as many as necessary. The proper aim in both cases is to protect citizens.  Although liberty is not a value that should always override all other considerations, it is the default position from which all differences must be vindicated. "If in doubt, go without" is a good approach to legislation, as it is for many other things in life.

Our laws should also embody "justice." Minorities should be protected from laws that unfairly apply only to them. Some legislatures in the United States have outlawed sodomy by both heterosexuals and homosexuals. Others, like Texas, outlawed it only for homosexuals. If this practice should be illegal for one group of consenting adults, should it not be for all others as well? Why should consensual oral or anal intercourse be legal for persons of different sexes but illegal for those of the same sex? Shouldn't our laws usually aim at practices instead of people?  Isn't mutual consent the legally relevant standard?

Sensible answers to these questions suggest that the United States Supreme Court was correct on June 26, 2003 when it ruled in Lawrence v. Texas that laws are unconstitutional when they make criminal consenting homosexual activities and not similar heterosexuals ones. Equals in equal circumstances ought to be treated equally. This is what justice requires.

Our laws should provide liberty and justice "for all." We should not have laws that we rarely and selectively enforce. We should not have laws that create more problems than they solve when we do enforce them. We should not have laws that divert needed and expensive resources from major dangers to ones that are less devastating for the whole community.  Laws that regulate sexual activity should apply to heterosexuals and homosexuals alike. 

Some argue that this conclusion opens the door to  many sexual activities that should be legally impermissible, including polygamy, bestiality and incest.  The legal requirement that sexual intimacies must be mutually consensual makes it conceptually impossible for things to go that far, however.  True consent is extremely unlikely in cases of incest and polygamy and impossible in instances of bestiality.

Every so often, we Christians rightly oppose popular proposed laws that would express our own ethical convictions in order to make room for others to exercise the liberty that they receive from our culture and from their Creator. On the other hand, sometimes we rightly favor laws that no one else seems to prefer. The proper criterion in such cases is neither merely what conforms to our own ethical convictions nor what most people want.  The standard should be the well-being of each citizen. The pivotal question is as straightforward as it is important: "Do we need this law at this time in order to protect innocent citizens from unjustified harm?" If our answer to this question is "yes," we should support the proposed legislation. If it is "no," we should not.

We Christians can and should have vigorous debates among ourselves and with others about the proper definitions of applications of terms such as "innocent" and "unjustified" in controversial cases. Indeed, this is precisely the point on which such debates should converge. 

To take an easy case, Christians ought to support laws that protect people who do not wish to smoke tobacco products from being forced to inhale the smoke of others. As long as smokers do not require others to cover the expenses of their habit, and as long as they do not compel others adversely to be affected by their second-hand smoke, they should be free to use tobacco products at will. Similar things could be said about the recreational use of alcohol and other drugs.

"Do we need this law to protect people?" is the most important question in such cases. Unless it seriously wounds people, we should be exceedingly hesitant to outlaw conduct that competent and informed adults freely choose. This is so even if the conduct in question is ethically objectionable from Christian points of view.  For theological and not merely cultural reasons, we Christians ought to favor the tradition that Roger Williams began.

Because people can be harmed directly by certain practices or indirectly by faulty, outdated or nonexistent institutions, it is appropriate, even necessary, to consider the institutional impact of alternative public policies.  Great care must be taken to assure that existing institutional expectations are not defended just because they have been configured a certain way for a long time, however.  Again, the default position in liberal democracies should be liberty, not tradition.  In such societies, liberty is the normative tradition!  As such, it enjoys a presumptive, but not an absolute, advantage.

This conclusion does not settle whether we Christians ought to support or oppose the legalization of same-sex marriages in liberal democracies like the United States at this time. It does pinpoint what the focus of our attention should be when thinking about this issue, however. If we believe that same-sex marriages will hurt people, we Christians ought to oppose their legalization. On the other hand, even if we hold that same-sex marriages are ethically wrong, we ought not to oppose their legalization if we believe that they will not seriously harm people, or that they will be less harmful than their likely alternatives.

This is an empirical question; it is a query that over time facts can answer. When feelings are intense, it is easy to ignore or distort the facts.  Nevertheless, we Christians should be among those who seek the facts most eagerly and take them most seriously when deciding which public policies to support.

One way to clarify our thoughts about this issue is to imagine that we are discussing possible reactions to same-sex marriages behind the "veil of ignorance" in what Harvard philosopher John Rawls called "the hypothetical original position."  We therefore have access to all general facts and theories; however, we are not permitted to know anything specifically about ourselves.  If we did not know whether we were rich or poor, male or female, black or white or Christian or non-Christian, what laws and other public policies would we favor regarding same-sex marriages?  Which options would we prefer if we did not know whether we were straight or gay?  When all is said and done, this is the most important question.