Nicoll errs when he fails to see distinction between
biblical marriage (or whatever you want to call the marriage for procreation
and family raising) and legal marriage (the license issued by the state and
granting certain joint civil rights).
Let’s assume that biblical marriage is a natural right and
non-biblical marriage is not a natural right. That leaves open the question as
to whether non-biblical marriage should be a civil right.
I would assert that government should recognize rights that
do not materially contribute to the common good of the governed but the
recognition of which do no material harm (I think this is the brand of
reasoning that would make the consumption of alcohol a right if anything will).
Government should interfere with individual freedom only to the extent that is
needed to promote the common good, and if something is not harmful it ought to
be allowed, that is, anything that is not harmful to society should be a right.
Most do consider biblical marriage (heterosexual marriage
for the purpose of procreation and family raising) a natural right.
Most people consider heterosexual non-biblical marriage
entered into for reasons other than procreation and family raising a right.
Many heterosexual couples marry because they love each other and want to spend
their life together in a monogamous relationship. Perhaps they cannot have
children for medical reasons. Perhaps they fear they cannot raise children
because of economic, physical, or other limitations. Perhaps they fear that the
pattern of their own mistreatment as children by their parents might be
repeated by them on their children. For whatever the reason, society recognizes
that such marriages are not only of value to society but do no harm to it as
well.
In the past (even in our own country) restrictions have been
placed on the right of heterosexual marriages. But those restrictions such as
limiting heterosexual marriage to partners of the same race have been stripped
away, perhaps because heterosexual marriage was seen as a natural right but
more likely because society recognized that such mixed marriages are actually
good for society but even if not a positive good do no harm.
Inevitably we will recognize that although homosexual
marriage is not a natural right, whether or not it contributes to the common
good is not material because in the long run, recognizing homosexual marriage
actually does no real harm, and thus should be allowed by the state. My
apologies to those who are upset by the thought of homosexual marriage, but
like some people’s problems with marriages of mixed race or mixed religion, or
even with childless marriages, protecting you from the pain of your own
prejudices is insufficient reason to interfere with the free choice of others.
I think it is quite appropriate that religious institutions
are allowed to restrict marriages performed under their jurisdiction to
heterosexual couples of the same religion or religious denomination, especially
if their sacred traditions explicitly disallow other types of marriages ---
freedom of religion and all that. But I think that homosexual marriage has as
many advantages and as few disadvantages to society as non-biblical
heterosexual marriage and as such, should be considered a civil right.
I like to distinguish ceremonial marriage from civil union. A
civil union is a government recognized “legal contract” between two persons
that grants them specific civil rights, the right of inheritance perhaps being
of most significance. Ceremonial marriage, on the other hand, is a “social
contract”, granted by non-government social organizations (primarily but not necessarily
exclusively religious) with no inherent legal rights. I have no problem to
attaching the rights of civil union to ceremonial marriage, but I do have
problems when the rights of civil union are restricted by qualifications
imposed on ceremonial marriages by non-government institutions.
Government should be involved in the business of civil
unions, open to any two persons of sufficient maturity, who want to spend their
lives together in a single “family” regardless of any other characteristics they
may have. Government should not be involved in ceremonial marriage, a social
institution in of itself granting no legal benefits.
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All Things Examined - Regis Nicoll
Bench
Legislation
By
Regis Nicoll
8/1/2008
A Civil
Right to Gay Marriage
"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 RIGHTSCivil 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—likethe
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 NATUREIt 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 INSTITUTIONThe 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
OVERREACHGranted, 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
RESPONSEIt 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 BreakPoint Centurion. 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.