A THEOLOGICAL GLOSS ON THE DECISION OF THE

CALIFORNIA SUPREME COURT ON PROPOSITION 8

By Dr Michael B. Johnson

It seems that two very different issues have become intermingled in the
debate which preceded and followed the decision of the California Supreme
Court on Proposition 8 last Wednesday: on the one hand, the question of
discrimination against gay and lesbian couples whose constitutional rights
were violated under Proposition 8, and on the other the religious argument
that marriage can only be between a man and a woman. This is confirmed
in the statement of Bishop J. John Bruno, who on November 5, 2008, wrote:

Proposition 8 is a lamentable expression of fear-based

discrimination that attempts to deny the constitutional rights of
some Californians on the basis of sexual orientation. It is only a matter
of time before its narrow constraints are ultimately nullified by the
courts and our citizens' own increasing knowledge about the
diversity of God's creation (with emphasis added).

The bishop is bringing together two approaches to this issue – one the
human rights of same-sex couples, the other the theological question of our
understanding of the will of God. When he added that “the Episcopal
Church, which has in recent years become one of the Christian
denominations most supportive of gay and lesbian rights, has been vocal in
its opposition to Proposition 8”, he is moving back onto the safer ground of
human rights.

It is the religious and theological concerns which demand examination in

greater depth. Let us look at some aspects of marriage as understood by
the Christian denominations.

One of the most commonly expressed objections to extending marriage to

same-gender couples is their inability to produce children, since so many
Christians still believe that marriage is “for children”. This was certainly true
in the Old Testament where it was acceptable and justifiable for the
patriarchs to take to themselves concubines solely for the purpose of
producing children if their wives were barren. Not to mention the striking
dead of Onan for wasting his seed which could have been put to better use,
namely raising a son to his dead brother. But the universal need to raise up
children for the father, the tribe and the nation of Israel has passed – with
the New Testament and the teaching of both Jesus and Paul.

This has been recognised by many denominations. It is noticeable in all

Reformed churches worldwide that of the reasons for which marriage was
ordained, the birth and upbringing of children, has been “demoted” to
THIRD place – after the mutual help and comfort of the couple and the
proper directing of the sexual nature. A number of conclusions can be
deduced from this, the first of which is that any couple of whatever gender-
mix or none who are willing to commit themselves to the first two –
presumably the most important reasons for forming a union – would be fully
justified in being deemed married. It follows from this that heterosexual
marriages which uniquely can result in children are in no way threatened by
the possibility of same-gender marriages. They have no competition from
the gay/lesbian community or from same-sex marriages.
It is therefore difficult to see the logic behind the claim that gay marriage
would somehow damage traditional marriage. It is incumbent upon those
who make this claim to elucidate what that “somehow” consists of.

Dr Margaret Somerville, the Canadian ethicist, attempts to explain this. She

writes that to extend the concept of marriage to same-sex couples

would be to change the essence and nature of marriage as the

principal societal institution establishing the norms that govern
procreation. Marriage involves public recognition of the spouses’
relationship and commitment to each other. But that recognition is for
the purpose of institutionalizing the procreative relationship in order to
govern the transmission of human life and to protect and promote the well-
being of the family that results. It is not a recognition of the relationship
just for its own sake or for the sake of the partners to the marriage, as it
would necessarily become were marriage to be extended to include same-
sex couples.”

There are so many assumptions and logical defects in the words of this
moral philosopher that they require a full refutation:

The fundamental error she makes is to see marriage solely in what one
might call Old Testament terms: that marriage is for procreation. The
“norms that govern procreation” can in no way be violated by a marriage
where the partners cannot by definition procreate. By analogy, does the
existence of the Reformed churches “change the essence” of the Roman
Catholic Church? The two run parallel, each with their own theologies. What
is to prevent gay marriages running parallel to traditional ones?

Also, if either a religious or a civil marriage ceremony were introduced for

same-sex couples, it would clearly be an expression of that same “public
recognition of the spouses’ relationship and commitment to each other” as
a traditional marriage.

What strikes me as particularly hurtful to married partners who are unable

to have children is her statement that marriage “is not a recognition of the
relationship just for its own sake or for the sake of the partners to the
marriage”. I would not go so far as to claim that children are incidental to
marriage, but if Dr Somerville were to glance briefly at the first chapters of
Genesis, she would see that companionship was the reason why God saw fit
to create a partner for Adam. If that is to be seen – in a rather
fundamentalist interpretation – as the first marriage, then it was certainly
not for children but for the couple themselves. Marriage is most definitely “a
recognition of the relationship” which exists between the partners.

What I fear is the hang-up of both Dr Somerville and Jerry Ballard (“I mean,
it was never God's intention for man to be married to man”) is the very
word “marriage” itself. It is so historically overloaded with one single
meaning – a heterosexual union for life – that it is almost intellectually
difficult to stretch its meaning to embrace the same-sex possibility.
Perhaps that lay behind the decision of the UK government to introduce
Civil Partnerships rather than marriages for gay and lesbian couples – a
decision which is currently under review with the possibility of using the
word “marriage” for both.

Those most opposed to the idea of same-sex marriages are religious people,
and not only Christians. I suspect that these people believe that they have
taken out a permanent lease on the word “marriage” and they alone have
exclusive rights to the word and its historical meaning. Whatever else can
be maintained about marriage, it certainly seems erroneous to claim that it
is per se a religious rite or that religious people have an exclusive right to
interpret the word to suit their own beliefs – or their own prejudices. An
example of this is the response, on 4 August, of the Church of Jesus Christ
of Latter-day Saints:

California voters have twice been given the opportunity to vote on

the definition of marriage in their state and both times have determined
that marriage should be recognized as only between a man and a woman.
We agree. Marriage between a man and a woman is the bedrock of
society. We recognize that this decision represents only the opening
of a vigorous debate in the courts over the rights of the people to
define and protect this most fundamental institution—marriage.”

Here we have a classic example of a denomination claiming ownership of

the term marriage. Would it not be more appropriate for a religious
organisation to maintain that God had defined marriage (if He has done)
rather than allow California’s voters to do so?

There are two things to be said here. The first is that marriage is not a
religious or even a Christian institution. Even the historical Church from
Augustine through to Thomas Aquinas, both of them always so rigorous in
matters of sexuality, had to admit that it was a “natural” institution –
something which existed in all creatures by their very nature. As Martin
Luther tartly observed “m arriage is valid am ong non-Christians, such as the Jews
and the Turks, quite as m uch as for the Christians. Therefore, it belongs to the order
nature”. The church may have “Christianised” it by gradually determining its
legal basis and formulating a universal marriage rite, but that process was
merely placing a Christian veneer on a natural institution.

Closely related to maintaining the traditional understanding of marriage is

the implication that a certain uniformity must be observed. All
denominations demand adherence to their theologies, and rightly so, at
least in general terms. The reservation in those last few words is based on
the words of Thomas Aquinas. An example of this is the universal obligation
to preserve one’s own life by eating and drinking, but it is not required that
we should all do that in exactly the same way. An action need not be
performed uniformly to be good.

In Bishop (now Archbishop) Vigneron’s Pastoral Letter to the Oakland

Diocese in May 2008, he wrote: “The experience of history -- both ancient
and in our own time -- has taught us that no government has the power to
change the order which God has inscribed in our nature." God has
inscribed this order in the nature of humanity – and indeed of all animals –
but again only in GENERAL terms, collectively. It is not required by God or
by the Church that it apply to everyone individually. There is also the more
relevant point that this “order” has clearly not been inscribed in the nature
of those people for whom heterosexual marriage is out of the question
because it is not in their God-given nature, namely gay men and lesbians.

The bishop continues:

"The conviction that same-sex couples cannot enter marriage is a

conviction which all Catholics implicitly affirm when, in our baptismal
promises, we profess that we share the Church's faith that the 'Father
Almighty [is] the Creator of heaven and earth'. This conviction about
marriage, while confirmed by faith, can be known from reason. Therefore,
our efforts to enshrine this wisdom about marriage [that is that it can only
exist between a man and a woman] in the laws of our community are
not an imposition of an ideology but a service of the truth which we
make for the common good.”

Yet again, the emphasis is on the collective of humanity, the “common

good”. It has always been in the nature of the Catholic Church not to allow
deviations from what it perceived to be the truth: it was in veritable panic
as it encountered the female mystics like Theresa of Avila, Hildegard of
Bingen and their like as they offered an alternative priest-free mystical
approach to God. Hans Küng, in our own time, was deprived by the Vatican
of his Licence to Teach in the Faculty of Catholic Theology at Tübingen
University because of his “deviations” from standard Catholic teaching.
Indeed, an excellent case can be put forward for claiming that it is the
“deviants” in all branches of knowledge, empirical and theological alike,
who because of their eureka moments have moved humankind forward and
closer to the ‘whole truth’ which Jesus promised us. Revelation did not come
to an end at the final page of the New Testament nor with the latest
encyclical from the Vatican.

At one point the bishop is skating on desperately thin ice: "In the long term:
If such efforts fail [by permitting gay couples to marry], our way of life will
become counter-cultural.” The requirement of his own profession that he
be celibate is counter-cultural; but the very existence in our midst of
celibate clergy has not wrecked our culture. Why should he assume that
counter-cultural same-sex marriages would do any damage to our society?
Like celibate priests, we would represent a “minority interest”.

He continues: “Even if such efforts [to introduce gay marriages] meet with
success, our work is far from done. We would still be living in a society
where many accept a set of convictions that is ultimately detrimental to the
integrity of human life, with negative consequences for one's happiness in
this world and the next. “

In these words of the bishop we have an example of the language typical of

all statements coming from persons in authority within the Catholic Church:
a language dealing in abstracts and universalisms. The one that stands out
here is the expression “detrimental to the integrity of human life”. What
does that mean? “Integrity” means ‘unimpaired wholeness, intactness’, and
anything which is detrimental to that violates it. It is significant that, yet
again, he emphasises the concept of totality, what I would call the demand
by the Church that we all be identical: we belong to a collective and must
share a collectivist and uniform ethical philosophy. Sadly, we are not all cast
in the same mould, not even all Christians, and certainly not all Catholics,
and it would be utterly wrong to assume in advance of the event that gay
marriages would in any sense violate the integrity of human life. Those gay
men and women who have committed themselves to each other, either
formally in civil or religious ceremonies or by simply living together in
marriage-like unions play their own part in supporting and undergirding
society: they do not act in detriment to humanity.

Dr Michael B Johnson is a former university professor in the

University of Wales, now living in Brighton, England, with his Civil
Partner of eight years.