What God Hath Joined

David,

I received your dispatch explaining why you’ve changed your mind again about same-sex marriage.

You write that you agree with Douglas Laycock that RFMA contains important protections for religious liberty. But you undermine that judgment with the first and primary example, that the legislation includes “an explicit statement by Congress that ‘diverse beliefs about the role of gender in marriage’ — including the belief that marriage is between a man and woman rather than between persons of the same sex — ‘are held by reasonable and sincere people based on decent and honorable philosophical premises’ and that such beliefs ‘are due proper respect.’”

This is a legally empty statement that provides no protection whatever. The only substantive assurance is about the tax exemptions for religious organizations that don’t participate “in the solemnization” of same-sex marriages. But solemnization is not the only or even the main point of civic conflict. Many organizations and individuals don’t solemnize marriages — religious adoption agencies, or colleges, will operate their policies with a definition of marriage in mind. Can they legally have a Christian one?

As I read the legislation, the best I can say about it is that it doesn’t explicitly contain the worst. It doesn’t take the path proposed by the Equality Act, which gutted the Religious Freedom Restoration Act. And it gives the government no mandate “to Bob Jones” religious institutions committed to the belief that marriage is between one man and one woman. But it doesn’t do anything to forbid the government from Bob-Jonesing those organizations.

And I think you understand this because you lay your heaviest emphasis on protections you anticipate to come from the Supreme Court’s First Amendment jurisprudence. I’m less sanguine than you on these. You cite Masterpiece Cakeshop, which, in my reading, deliberately avoided ruling on the First Amendment and instead said that a Christian baker had a right to state institutions that didn’t compare his religious faith to Nazism while punishing him. The liberals who joined that ruling weren’t endorsing free exercise but strengthening a form of nondiscrimination that may indeed be used to discriminate against Christians in the near future. The question of whether the Colorado Civil Rights Commission can punish Jack Phillips for refusing to lend his talents to the celebration of a same-sex wedding was kept deliberately open. The Civil Rights Commission wasn’t told, “Don’t do this.” It was lightly reprimanded with the equivalent of, “Don’t discriminate so obviously against Christians.”

But those are all prudential disagreements. The more important substance is the radical distinction you make between covenant marriage, as understood by the church, and civil marriage, as understood by law.

Marriage is not a Christian doctrine like the justification by faith, which requires special revelation and is thus reserved for those Christians who are endowed by the Holy Spirit with the gift of faith. No, marriage is an entailment of the law written on men’s hearts — the natural law. And that is why it was so easy for unbaptized civilizations to recognize and solemnize it. And that, in turn, is why the Christian Church has always recognized the marriages made by non-Christians as valid and binding, wherever it could — whatever the deficiencies of the customs and laws surrounding it.

Before he died, Roger Scruton — a man not always comfortable admitting belief in revealed religion — defended traditional marriage in law from precisely your argument:

One Christian response is to say simply that the State can define marriage as it will, can confer whatever legal privileges on whatever couples it should single out for its protection, but that this has no bearing on the reality, which is a matter of metaphysics, not convention. Marriage, on this view, is a sacrament, and can be neither made nor unmade by the State. Nothing, therefore, is changed by the new legal order.

That response is understandable, but also short-sighted. In our secular society the State has perforce assumed many of the functions of religion. Moreover, you don’t need to regard marriage as a sacrament and a vow before God in order to adhere to the traditional view of it. In every society of which records exist marriage is seen as a bond between man and woman in which the whole of society has an interest. Marriage is the way in which families begin, and the obligations undertaken by the partners reach far beyond any contract between them. Until now we have acquiesced in the idea that the State can solemnise marriages and secure them through legal privileges. And we have accepted that the State can use the criminal law to retain some version of the Judaeo-Christian conception of the marriage vow. Thus our laws against incest, bigamy and child marriage reflect the belief that marriage, as defined by the State, is to be judged in terms of another and higher standard. But as marriage is rewritten as a contract between partners in which future generations have no voice, those laws lose their underlying rationale.

He concludes, “we have had in the back of our mind that the bond between husband and wife, like that between parent and child, has a moral nature that transcends the sphere of contract. We resonate to the old rites of passage, and wonder what business it is of the State finally to set them aside, with no obvious reason, and with no clear mandate for doing so.”

To his argument, I would add another one. By taking what is part of our common grace inheritance as God’s creatures and reserving it to a private religious sphere, you are leaving yourself defenseless against transgender mania. For the same distinction will be demanded of you there. Having the benefit of revelation and your private religious enthusiasm, you can distinguish between covenant marriage and civil marriage. Now you must make the same distinction between your private convictions about a “creational sexual identity” — male and female he created them — and the legally and socially binding sexual identity which can be defined in whatever way power, whims, surgeons, pill-pushers, ideologues, and the mentally ill desire. Giorgia Meloni was correct to quote Chesterton:

The great march of mental destruction will go on. Everything will be denied. Everything will become a creed.  It is a reasonable position to deny the stones in the street; it will be a religious dogma to assert them. It is a rational thesis that we are all in a dream; it will be a mystical sanity to say that we are all awake. Fires will be kindled to testify that two and two make four. Swords will be drawn to prove that leaves are green in summer. We shall be left defending, not only the incredible virtues and sanities of human life, but something more incredible still, this huge impossible universe which stares us in the face. We shall fight for visible prodigies as if they were invisible. We shall look on the impossible grass and the skies with a strange courage. We shall be of those who have seen and yet have believed.

And finally, while we make distinctions between what our churches demand in our marriages and what the state does — that does not mean the state has a license to lie. And it is a lie to call the return of legally recognized concubinage marriage or progress.

Your friend,
Michael