A Time to Embrace: Same-Sex Relationships in Religion, Law, and Politics, 2nd edition

A TIME TO EMBRACE

A TIME TO EMBRACE

Same-Sex Relationships in Religion, Law, and Politics

SECOND EDITION

William Stacy Johnson

WILLIAM B. EERDMANS PUBLISHING COMPANY

GRAND RAPIDS, MICHIGAN / CAMBRIDGE, U.K.

© 2006, 2012 William Stacy Johnson

All rights reserved

First edition pubished 2006

Second edition published 2012 by

Wm. B. Eerdmans Publishing Co.

2140 Oak Industrial Drive N.E., Grand Rapids, Michigan 49505 /

P.O. Box 163, Cambridge CB3 9PU U.K.

18 17 16 15 14 13 12         7 6 5 4 3 2 1

Library of Congress Cataloging-in-Publication Data

Johnson, William Stacy.

A time to embrace: same-sex relationships in religion, law, and politics /

William Stacy Johnson. — 2nd ed.

p.         cm.

Includes bibliographical references (p.        ) and indexes.

ISBN 978-0-8028-6695-0 (pbk.: alk. paper)

ISBN 978-1-4674-3599-4 (ePub)

1. Same-sex marriage.

2. Homosexuality — Religious aspects — Christianity.

3. Homosexuality — Law and legislation.

4. Homosexuality — Political aspects.

I. Title.

HQ1033.J64     2012

306.84′8 — dc23

2012006942

atimetoembrace.com

www.eerdmans.com

For my wife, Louise

Contents

PREFACE TO THE SECOND EDITION

PREFACE TO THE FIRST EDITION

INTRODUCTION: Gaining Perspective

PART ONE

RELIGION

1. The Non-Affirming Church

2. Toward a Welcoming, Affirming Church

3. Becoming Family: The Consecration of Same-Sex Love

PART TWO

LAW AND POLITICS

4. Freedom and Equality under the Law

5. Toward a Welcoming Democracy: Marriage Equality in the Civil Polity

CONCLUSION: A Time to Embrace

SELECT BIBLIOGRAPHY

NOTES

INDEX OF NAMES

INDEX OF SUBJECTS

INDEX OF SCRIPTURE REFERENCES

Preface to the Second Edition

The Supreme Court has said . . . [m]arriage is the most important relation in life. Now that’s being withheld from [same-sex couples]. It is the foundation of society. It is essential to the orderly pursuit of happiness. It’s a right of privacy older than the Bill of Rights and older than our political parties. One of the liberties protected by the Due Process Clause. A right of intimacy to the degree of being sacred.

Ted Olson¹

Dramatic changes are afoot for same-sex couples. Six years ago, when the first edition of A Time to Embrace was published, the pro-gay marriage view it took stood in the minority. Now attitudes about gay marriage in the United States have suddenly reached a tipping point. In 2011 for the first time polls indicated a shift toward a solid majority of Americans — 53 percent — who favor allowing gay and lesbian couples to marry. Since only 27 percent were favorable in 1996, and 40 percent in 2004, this represents an astonishing transformation in public attitudes in a very short period of time.² Among younger Americans the support is even higher, with a formidable 70 percent approval from people aged eighteen to thirty-four.³ These demographics suggest there will be even greater majorities supporting gay marriage going forward.

When the book was first published only three American jurisdictions provided some measure of equality for same-sex couples. Back then only one state, Massachusetts, approved of gay marriage, and only two states, Vermont and Connecticut, allowed civil unions. Yet now the number of jurisdictions that either allow or are moving toward gay marriage or civil unions has more than quadrupled. Gay marriage has been approved in seven American jurisdictions (Connecticut, Iowa, Massachusetts, New Hampshire, New York, Vermont, and the District of Columbia). It has been approved in two more, Maryland and Washington, pending possible voter referenda. Civil unions exist in five new states (Delaware, Hawaii, Illinois, New Jersey, and Rhode Island). Nine states have domestic partnership laws which, while falling short of full equality, are likely to offer a stepping stone toward greater equality in the future. If you add all this up, the result is over 20 percent of American states trying to provide some level of marriage equality and over 40 percent permitting some level of legal recognition for gay couples. No matter which side of the debate one is on, these trajectories cannot be ignored.

Why are so many changing their minds on this issue? The best answer became vividly apparent at the 2010 trial in the California case of Perry v. Brown (formerly Perry v. Schwarzenegger), a challenge brought against so-called Proposition 8. This proposition was the California constitutional amendment that reversed a 2008 court order mandating gay marriage. During the 2010 trial, opponents of same-sex marriage had a golden opportunity to offer empirical evidence for their central claim that same-sex marriage does measurable harm to children and harm to the institution of marriage itself. But when it came time to offer evidence, they had none. The one witness they called to testify on this point admitted on cross examination that same-sex marriage would be beneficial to gay and lesbian couples and to their children. His opposition to gay marriage was based not on empirical research but on his private moral views.⁴ In contrast, the legal team supporting same-sex couples called multiple expert witnesses holding professorships at Harvard, Yale, Stanford, Columbia, Cambridge, and UCLA with international reputations in psychology, economics, history, political science, and social epidemiology. They shared peer-reviewed data showing that children raised by same-sex couples are just as likely to be well-adjusted as children raised by heterosexual parents, that same-sex marriage does nothing to harm heterosexual couples or diminish their propensity to procreate, and that denial of marriage to same-sex couples does substantial harm. In short, it is hard data of this sort that is prompting public opinion to change.

This sea change in attitudes is gaining the attention of politicians. On December 22, 2010, President Barack Obama signed a law repealing the so-called don’t ask, don’t tell policy for the American military, under which more than 13,000 gay and lesbian soldiers have been removed from the armed services. A few months later the Obama administration declared it would no longer defend the constitutionality of the Defense of Marriage Act, which defines marriage in federal law as a union between one man and one woman and has the effect of denying Social Security and many other federal benefits to gay and lesbian couples and their families.⁵ Although in the past President Obama has said he is for civil unions and opposes gay marriage, he now says that his views on the subject are evolving.⁶

This increasing openness to gay marriage in America follows a wave of similarly decisive moves internationally as well. When the first edition of this book was published, gay marriage was already recognized in the Netherlands (2001), Belgium (2003), Spain (2005), Canada (2005), and South Africa (2006). It has since been approved in Norway (2009), Sweden (2009), Portugal (2010), Iceland (2010), and Argentina (2010). In Argentina the latest polls show that 70 percent of the people favor this move. Next door to Argentina in Uruguay a same-sex marriage bill has been introduced. In 2010 Mexico began to recognize gay marriages.⁷ In Nepal, recognition of same-sex marriage has been judicially mandated and should become part of its new constitution, making it the first Asian nation to recognize marriage equality.⁸ Similarly, the list of nations around the world providing civil union or registered partnership arrangements is a long one, including Andorra, Austria, Brazil, Colombia, the Czech Republic, Denmark, Ecuador, Finland, France, Germany, Greenland, Hungary, Ireland, Luxembourg, New Zealand, Slovenia, Switzerland, the United Kingdom, and Uruguay. It is likely that over time many of these nations will move toward same-sex marriage. For example, same-sex marriage legislation is currently being considered in Luxembourg, Finland, and the United Kingdom.

Given this rapid pace of change, and especially the growing strength of legal arguments in favor of same-sex marriage, it is now no longer a mere possibility but a firmly rooted reality. Opponents used to object that marriage is one of the oldest of human institutions. Now the argument has shifted, with supporters of gay marriage insisting that precisely because coupling and family bonding are so integral a part of human life, it is unthinkable not to recognize and support gay families. An increasing number of conservatives now accept this shift in thinking. As the conservative Republican attorney Ted Olson argued in the Perry v. Schwarzenegger trial, we are unjustly excluding gay couples from a right of intimacy to the degree of being sacred. So much has the landscape changed that legal discussion has now shifted away from whether gay marriage makes sense and toward how to protect the free exercise rights of those who disagree.⁹ In the United States the First Amendment guarantees freedom of religious speech so long as that speech does not cross certain boundaries of harming others. The question is where those boundary lines are rightly drawn and what level of harm is required to trigger them. In some places there are hate speech restrictions, especially in Europe and Canada, that some religious opponents of gay marriage worry will be used against them. In the American context, however, fears about repercussions against religious groups are seriously overblown. A case in point is Snyder v. Phelps, where the United States Supreme Court upheld in an 8 to 1 ruling the constitutional right of Westboro Baptist Church of Topeka, Kansas, to picket the funeral of a fallen marine with signs saying such things as God Hates Fags.¹⁰ Legal outcomes such as this show that religious freedom in the United States is not at risk. Gay marriage laws in some states already contain substantial protections for religious freedom. Ways of addressing the ongoing concerns of religious groups, such as being held responsible for discrimination in the workplace, liability for sexual harassment, creating a hostile work environment, and their fears, such as who gets to teach and what gets taught in public schools, restrictions on religious clubs in public schools and universities, restrictions on receiving federal funds, access to housing, and the like, are presently being addressed. The key here, I think, is that both religious liberty and personal liberty need to be balanced and protected. Throughout this book I discuss ways to accomplish this balance. As constitutional lawyer Douglas Laycock has shrewdly noted, however, claims to liberty by religious traditionalists would be more credible . . . if they did not devote so much of their energy to restricting the liberty of others.¹¹

Changes in Moral and Religious Attitudes

As one might expect, these changes in the legal sphere are matched by shifts in moral and religious attitudes as well. When the first edition of this book was published, most mainline denominations still prohibited the ordination of partnered gay and lesbian people, and the ecclesial discussion of gay marriage was just getting off the ground. In 2005, as the first edition was going to press, the United Church of Christ (UCC), which witnessed the first ordination of a gay man in 1972, became the first major U.S. denomination to affirm equal marriage rights for couples regardless of gender. This meant full inclusion in the institution of marriage — its benefits and its obligations — plus acquiring the societal respect that the m word brings with it.

In the UCC, pushing for gay ordination first before working through the question of the sanctity of gay relationships worked out well. In most other mainline churches, however, this sequence has produced turmoil. For over thirty years advocates within mainline churches have been urging the removal of categorical bans against gay ordination. These efforts met early resistance because many in the pews associated being gay with an immoral lifestyle. In other words, advocacy groups in the 1970s and 1980s often pressed their constituents to accept gay leadership before first helping them to accept gay identity or showing them a way toward a sanctified context for gay relationships. When the secular drive for gay marriage gained traction in the 1990s, suddenly a new conversation began in the churches. Greater acceptance of gay identity and the advent of new arguments for the consecration of gay relationships made the possibility of openly gay church leadership seem more morally consistent.

It is for this reason that changes on both the ordination and gay marriage fronts have recently taken root across American mainline denominations. In 2009 the Protestant Episcopal Church in the United States of America voted that local bishops may allow the blessing of same-sex couples.¹² That same year the Evangelical Lutheran Church in America voted to ordain persons in publicly accountable, lifelong, monogamous same-gender relationships.¹³ On May 11, 2011, the Presbyterian Church (U.S.A.) voted to eliminate a provision of its constitution designed to prohibit the ordination of certain sexually active gay and lesbian people. Presbyterian ministers have long been permitted to bless gay relationships, so long as they are not equated with marriage, but a recent Presbyterian task force has pointed out the limitations gay families face when deprived of the m word. Aware of all this, United Methodists have decided at their 2012 General Conference to reconsider the declaration from the Book of Discipline that the practice of homosexuality is incompatible with Christian teaching.

Of course, the growing public and legal support for same-sex couples does not mean the path toward acceptance of marriage equality is moving in a straight line. As with most human endeavors, it has proceeded with two steps forward, one step back. New moral and religious attitudes are being shaped, but old ways of thinking die hard. James Davison Hunter has recently provided an illuminating analysis of how gays, lesbians, and their straight allies have effectively mobilized institutions, networks, and cultural symbols to bring about broad-based change. At the same time, he shows how this change is fiercely resisted by groups that do not want to lose their positions of cultural dominance.¹⁴ The resulting conflict is easy to discern in recent public clashes surrounding gay marriage on the American scene. Two states — California and Maine — adopted gay marriage only to have it invalidated by voter referenda. Similarly, the Colorado legislature tried to enact civil unions in 2011 but failed on a strictly party-line vote. The state of New York passed gay marriage on June 24, 2011, with 58 percent of the citizens in favor but only after months of heated give-and-take. When it finally did pass in New York, it did so because both Democrats and some courageous Republicans decided it should be so. This one legislative act doubled the number of American gays and lesbians who have access to marriage.

All this suggests that gay marriage will continue to make progress but will remain a source of contention. In the first edition of this book I predicted that the number of gay marriage states would increase, though my timetable was far too conservative. What I thought might take ten to twenty years has happened in five to six. In the near future we are likely to see gay marriage advance even further in New England, the mid-Atlantic states, California, and other West Coast states. We have seen gay marriage in Iowa and civil unions in Illinois, and can expect to see continuing change of attitude in the American heartland. But beyond the regions I have mentioned, things will become more complicated. Thirty-eight American states still have either a constitutional amendment, a statute, a court ruling, or some combination aimed at preventing full marriage equality. It is possible that these constitutional amendments could be invalidated eventually by a United States Supreme Court decision. There are good reasons for the Court to do so. Arguably these constitutional prohibitions violate Equal Protection and infringe upon the fundamental right to marry the person of one’s choice. The district court in Perry v. Schwarzenegger has already so ruled, and on February 7, 2012, the Ninth Circuit Court of Appeals signed Perry v. Brown. There is a chance this case will make its way to the Supreme Court.¹⁵ Absent a Supreme Court decision, however, the advent of gay marriage in the rest of the country will proceed on a state-by-state basis. It will take time for these states to undergo change.

This will present a complicated situation for the life of religious communities, and also for gay and lesbian couples. Ministers, rabbis, and other religious leaders are being called upon in places like the Northeast to preside at same-sex weddings, while their official denominational policy may not allow it. Gay and lesbian couples face the dilemma of being legally married in their home state but having their marriage go unrecognized when traveling to another. Imagine, for example, a married gay person whose spouse falls ill in another state where the hospital will not recognize the couple’s health care power of attorney. For the time being, then, ministers, gay couples, and religious communities face a patchwork quilt of laws that vary widely from location to location.

How the future of gay relationships fits within this rapidly changing social situation depends not just on secular politics but on moral and religious attitudes that are nurtured in communities of faith and in civic society at large. This book aims to contribute to that conversation.

A Conflict over Sacred Values

The dramatic changes we are witnessing, and the conflicts they provoke, involve disputes over sacred values. The issue is how both religious communities and secular society should honor the deeply felt, public commitments people make to each other. Though the secular and sacred realms operate according to different rules, marriage is an issue regarding which secular and sacred values overlap and impinge upon one another. This is because the decision to give oneself in nuptial commitment to another usually invokes a person’s deepest longings, his or her most important notions of what it means to be human. In both secular and sacred contexts, then, nuptial love becomes a cause for celebration and remembrance, communal gathering and societal protection. Whatever else religion may be, and whatever else a secular, democratic government may be, both entail a valuing of the humanity of others. If I truly value your humanity, then I will value your most precious relationships, so long as those relationships are not hurtful to others.¹⁶ What does it mean if I steadfastly refuse to honor your spouse? Your children? Your family? At a basic level, it means that I do not honor you. I am denying something essential about you, your identity, and your right to belong.

This is the reason gay marriage cannot help but impact both religion and politics. This is the reason gay marriage is not going away. And this is why it is important to both religion and society that people of good faith work together to formulate honorable and practical ways to move forward on this issue. To facilitate that goal, A Time to Embrace seeks to present an integrated discussion of religion, law, and politics. All three realms are part of the social fabric and none can be ignored as we seek a life-giving way forward. The book speaks from a particular point of view, but it is addressed to people from many points of view.

To that end, a centerpiece of the first edition of this book was a description of seven competing moral and religious viewpoints on same-sex relationships: (1) prohibition, (2) toleration, (3) accommodation, (4) legitimation, (5) celebration, (6) liberation, and (7) consecration. The first three viewpoints — prohibition, toleration, and accommodation — are non-affirming views. As explained in Chapter One, they reject the propriety of same-sex relationships, though accommodationists may be willing to allow domestic partnerships or civil unions. The second three — legitimation, celebration, and liberation — are welcoming and affirming views. As noted in Chapter Two, they reject the stigma that has long attached to gay and lesbian people in modern Western culture and seek full acceptance of their committed relationships both morally and legally. The last view — consecration — tries to combine some of the best of all the views by framing a welcoming, affirming, and ordering position. It is introduced in Chapter Two and explained in more detail in Chapter Three. It fully affirms gay identity while also providing a nurturing, supportive, and sacred space for committed gay relationships.

This book’s second edition comes at a time when a discernible shift is taking place among the non-affirming toward a position of greater accommodation — a grudging permission of gay relationships but one that still falls short of full acceptance. This is evidenced in greater public approval of domestic partnerships and civil unions, which are seen by the non-affirming as less offensive than gay marriage itself. Shifts are taking place among advocates of the welcoming and affirming viewpoints, as well. For decades those who affirmed gay sexuality articulated positions of legitimation, celebration, and liberation. When the push for gay marriage first arose in the 1970s, some gay advocates objected that marriage was an oppressive heterosexual institution in which gays and lesbians should have no interest. Some still hold that view. But many more have shifted toward seeking consecration of their sacred commitments, mounting a full-court press to gain full access to the institution of marriage.

(These shifts have prompted me to adopt a change of nomenclature. In the first edition I mostly used the term same-gender. I did this to move the focus away from sex and sex acts and toward people and relationships. However, now that the scope of marriage availability is changing and the term same-sex marriage is being widely used, I more often speak in terms of same-sex relationships or same-sex marriage.)

When opponents object that gay marriage will change the institution of heterosexual marriage, they are actually reflecting anxieties about changes that are already taking place. Marriage is shifting from a patriarchal institution with clearly defined gender roles to an egalitarian institution in which the partners themselves negotiate the terms of the civil contract. There are still obligations and benefits associated with the institution but in ways that are more gender-blind than in the past. Now that fixed gender roles are less decisive in what constitutes a marriage, it becomes more natural for marriage to include gay and lesbian couples. As these changes solidify in our society, those who advocate against gay couples and for traditional family values will eventually see that the discussion has moved beyond them.¹⁷

In the book’s first edition, the position to which I committed myself was that same-gender relationships should be consecrated within our religious communities, fully validated in law, and welcomed without reservation into the fabric of our democratic society. This position, so I maintain, does not represent a departure from long-standing religious and political principles but rather a deepening of them. The second edition continues to press this case, taking account of the rapidly changing cultural, political, and ecclesial contexts I have just been describing. The most thoroughgoing revision in this edition comes in Chapter Five, where I discuss the state-by-state changes that have occurred on the American political scene since the book was first published. I continue to maintain that debates over civil unions and gay marriage represent far more than a culture war or the perpetuation of partisan politics. My claim, then and now, is that in these conflicts the very nature of democracy itself is being tested.

Not only is the integrity of democracy at stake in our current debates, but for Christians the meaning of the gospel is also at stake as well. This was implicit in the first edition, but I want to make it more explicit here in the second. When I say the meaning of the gospel is at stake in this debate, what do I mean? At the most pragmatic level, the integrity, persuasiveness, and public intelligibility of the church’s witness are at stake, since polls indicate young people increasingly equate Christianity with being judgmental and anti-gay.¹⁸ This is an ironic turn of events for a religion whose central figure, Jesus of Nazareth, constantly displayed solidarity with those whom society considered immoral, outcasts, and pariahs. At another level, the meaning of the gospel is at stake because sacred values are being contested. Do we hold a couple’s nuptial bond to be sacred or do we not? Will we honor the couple and accept their family or not? Some believe the only people who can answer yes to these questions are liberals or progressives. This is not true. Conservatives who espouse traditional values, who care about strengthening the family, and who wish to encourage moral integrity have good reasons to support committed same-sex couples. Many are becoming convinced that the isolated statements about homoerotic liaisons in the Bible are aimed at culturally specific situations and say nothing explicit about the issue we are considering today, namely, same-sex couples and their families who are seeking to order their lives within a committed, covenantal framework.¹⁹ Many are finding positive biblical reasons, such as the centrality of covenantal love, as a warrant for supporting same-sex couples.

To put it another way, the only reason there is a growing majority approving of gay identity and gay marriage is because religious-minded people, including conservatives, are changing their minds. In a new conclusion I argue that Christians in particular have a responsibility to reexamine their traditional opposition to same-gender sexuality, take seriously their share of responsibility for the discord that has surrounded this issue, and grapple with new arguments for same-sex marriage, which are rooted in tradition and the deep meaning of the gospel.

The first edition of A Time to Embrace sought to create a conversation about gay marriage as a new possibility. Now that gay marriage has moved from mere possibility to inescapable social and political reality, the aim of the second edition is to continue the dialogue and chart a path forward. It emphasizes the importance of respectful dialogue, but it especially seeks to honor the people whose lives are impacted by the dialogue. It addresses the issue but with an overriding concern for the people behind the issue.

Stories of real people in real situations have influenced the dramatic changes in public policy and public opinion that we have seen in recent years. In increasing numbers, gay and lesbian couples are giving themselves to one another in sacred commitments of love. Contrary to stereotype, gay men form the majority of same-sex couples (by 51 to 49 percent).²⁰ Whether we are talking about gay or lesbian couples, their relationships have all the major hallmarks of marriage as traditionally understood: faithfulness, self-giving, mutual submission, longevity, the desire to cherish and serve the other without qualification, steadfastness in sickness and in health, the establishment of a household and family, and in many cases the nurturing of children.

This is the reality causing many previous opponents of gay marriage to change their minds. This is the reality some continuing opponents of gay marriage still conveniently ignore and dismiss. This is the reality prompting ground-breaking changes in the way religious-minded people are thinking about same-sex love and the sacred commitments this love inspires.

Preface to the First Edition

It would have been difficult, perhaps impossible, when I first began teaching and lecturing on this issue some fifteen years ago, to write a book of this sort. Back then the building blocks were not in place to pull together a reflection on same-sex relationships based on the highest and best of our religious, legal, and political traditions. Since then everything has changed.

First, an outpouring of scholarship from many different fields has placed this issue in a new light. I am deeply indebted to groundbreaking work from social scientists, historians, lawyers, political theorists, theologians, and biblical scholars, and I have sought to summarize some of their findings in the introduction. One scholar in particular, Professor William N. Eskridge Jr. of Yale Law School, has had a profound influence on my approach. The impact of his definitive works on gay rights and marriage equality is visible on every page of my chapters on law and politics.

Second, it is now much more common for gay and lesbian couples to share their lives and stories openly with others. Many of these couples are raising children and living lives of integrity for all to see. I count such couples among my close friends, and it is with them in mind, and in gratitude for their courageous witness, that I have written this book.

Third, the discussion in the churches has evolved rapidly over the last decade, so much so that it is no longer correct (if it ever was) to say that there are simply two views on the subject, a biblical view and a nonbiblical view. As will become clear in the pages ahead, what the biblical writers confronted in their context and rejected was a one-sided and hedonistic homoeroticism based on who did what to whom. This is very different from the reality we are debating today, namely, the love between two equals joined in covenant fidelity. Recognizing this, the church’s more recent reflections have produced a range of views, each of which draws from the deep wells of biblical, theological, and moral traditions. I have learned a great deal from these many different perspectives while also crafting my own constructive approach to the issue.

This book, and especially Chapters One and Two, began with a request by Barbara Wheeler for me to make a presentation in August 2004 before the Theological Task Force on the Peace, Unity, and Purity of the Church of the Presbyterian Church (U.S.A.), of which I was a member. My collaboration with Sharon Youngs on that initial project was especially meaningful, and her friendship remains an inspiration. The members of the Task Force (Mark Achtemeier, Scott D. Anderson, Barbara Everitt Bryant, Milton J. Coalter, Victoria G. Curtiss, Gary Demarest, Frances Taylor Gench, Jack Haberer, Mary Ellen Lawson, Jong Hyeong Lee, John B. [Mike] Loudon, Joan Kelley Merritt, Lonnie J. Oliver, Martha Sadongei, Sarah Grace Sanderson-Doughty, Jean S. [Jenny] Stoner, José Luis Torres-Milán, Barbara G. Wheeler, John Wilkinson, staff facilitator, Gradye Parsons, and our able aide, Bobbie Montgomery) represented the full spectrum of contemporary theological viewpoints, and so I was greatly encouraged by the unanimous and enthusiastic approval they registered to the way I framed the issues. I also have been instructed by their helpful suggestions for improvement. I want to pay a special tribute to Scott Anderson, who has encouraged me in this endeavor more than he knows.

All of my colleagues at Princeton Theological Seminary have been extremely supportive as I have juggled many internal and external responsibilities over the last several years. In particular, I am grateful to those who have assisted me in concrete ways and with whom, from time to time, I have discussed the biblical and theological aspects of same-sex unions, including Brian Blount, Chip Dobbs-Allsopp, Bob Dykstra, Beverly Gaventa, George Hunsinger, Jim Kay, Jacqueline Lapsley, Gordon Mikoski, Daniel Migliore, Jim Moorhead, Dennis Olson, Rick Osmer, Katharine Sakenfeld, Leong Seow, Max Stackhouse, Jack Stewart, Mark Taylor, Iain Torrance, and Ross Wagner. I am also grateful for ongoing conversations with my Princeton colleague, Dave Wall.

I owe a final word of thanks to my wife, Louise, without whose loving presence, collaboration, and advice this project never would have been completed. Her many years as a pastor and teacher of Scripture inform me constantly. I dedicate this book to her.

INTRODUCTION

Gaining Perspective

Our fears are made in our own image. When . . . the feared object is homosexuality, there is a mirror in which we can see reflected the society that rejects it; in the terms used, in the outline of what is being feared, lie the preoccupations and ways of thought of that society. And the greater the force of its rejection, the more naively it reveals itself.

Alan Bray, Homosexuality in Renaissance England¹

In the city of Rome in the year 1578, a small cadre of Portuguese and Spanish men came forward to be married to one another by a Catholic priest in a public ceremony in the Church of St. John at the Latin Gate.² It is reported that the priest married them male-to-male in the belief that, since marriage consecrates the union between male and female, it must also consecrate unions between two people of the same gender. Whether these men had hit upon a brand-new idea or were harking back to the well-known rite of ritual brotherhood that had flourished in the church in the Middle Ages, we do not know.³ What we do know is that the men, having thus had their relationships consecrated through the ministry of the church, consummated their unions and began cohabiting. However, when the city authorities discovered what had happened, they arrested the men and summarily imposed on them what was then the penalty of choice for same-gender sexual offenses: they were burned alive at the stake.

This story reminds us that conflicts over the status of same-sex relationships have been with us for a very long time, though they have increased in intensity in recent years. They revolve around not only differences over the propriety of same-sex love itself but also around deep conflicts over the broader explanatory narratives that we use to make sense of our world. Where do same-sex couples fit within these foundational stories of Western culture? Should we think about homoerotic love as the Greeks and Romans did — for whom same-gender sexual pleasure was taken for granted as part of a largely hedonistic view of the world? Or should we adopt the viewpoint that has prevailed in much of Jewish and Christian culture, which considers homoerotic relationships and acts to be a shameful departure from the patterns of marriage and family that God has ordained? Or is there a third alternative that is emerging in our own day, one that combines insights from these two great streams of Western civilization? Is it possible to accept gay and lesbian love while also urging that gay and lesbian people consecrate that love in exclusively committed unions? If so, should society create separate marriage-like civil union arrangements, or should the definition of marriage be expanded to include same-sex couples?⁴

I have been thinking about these issues for a long time. On the one hand, as a professional theologian, an ordained minister, and a Christian deeply committed to the gospel, I have watched for over thirty-five years as the issue of same-gender sexuality has been tearing mainline churches apart. Much of the internal debate in the churches has boiled down to a clash of biblical proof-texts, or monolithic appeals to nature or tradition, with little sustained theological or pastoral analysis. On the other hand, as a lawyer and a citizen committed to principles of equality and fairness, I have watched as large swaths of society have become content to treat gay couples and their children with legal and economic indifference. Suppose that your son or daughter, or your brother or sister, or a close friend is gay, commits himself or herself to a life partner, and adopts a child. Suppose further that tragedy strikes and one of the partners dies, leaving the surviving partner and child all alone. If this were a heterosexual couple, the law would step in with literally hundreds of state and federal benefits to aid the family. For the gay couple and their child, however, the response of most states and of the federal government is mostly to leave them to their own devices. Nor is this merely a case of benign neglect. Lately, many states have been taking proactive measures — in the form of statutes and even constitutional amendments — to see to it that gay couples and their families are excluded from the recognition and support that most families simply take for granted.

I have watched all this, and I can watch no longer. I feel the need to contribute to finding a way forward. The Bible says that there is a time for everything (Eccles. 3:1), and I believe the time has come to offer my strongest support to gay and lesbian couples who are seeking to make a life together. To that end, I undertake in these pages to craft a welcoming and affirming posture toward persons in exclusively committed same-sex relationships. My analysis is situated at the crossroads of religion, law, and politics. This is important because anti-gay religious advocates often proceed with little awareness of the legal or political ramifications of their positions. By the same token, pro-gay political advocates often have little understanding of the deep convictions that motivate religious-minded people. Only an interdisciplinary approach has the potential to move us forward successfully.

Taking up this interdisciplinary stance, I devote Part One of this book to religion and Part Two to law and politics. I argue that same-sex unions should be consecrated within our religious communities, validated within our legal systems, and welcomed within the framework of our democratic polity. A welcoming and affirming stance, I believe, is vital to the integrity of our religious communities, imperative for the self-consistency of our legal system, and necessary to the long-term well-being of our democratic culture.

The question to which I direct this book is fairly specific. I do not try to provide an ethics of human sexuality in general. Instead, I ask the following question: Where do gay, lesbian, or other gender-varied persons, whose sexual orientation is firmly established, and who desire to enter into exclusively committed, lifelong same-sex relationships, find their place within the fellowship of our religious communities, within the structures of our legal system, and within the framework of our democratic polity?

Even though the stance I take here is one of advocacy for gay couples, I try to positively engage people from across the spectrum. In Chapters One and Two, I present a range of seven moral and theological ways of looking at same-sex relationships. These include both non-affirming and affirming viewpoints, with perspectives ranging from the categorical prohibition of all such relationships (viewpoint one) to the advocacy of full ecclesiastical consecration for gay couples (viewpoint seven). In an effort to be fair, I discuss the strengths and weaknesses of each viewpoint. Because of my own commitments as a Christian, I consider each of these seven viewpoints in their relationship to the standard Christian way of construing reality, namely, as an unfolding drama of creation, reconciliation, and redemption. At the same time, I discuss the issues in ways that I hope non-Christians will find informative.

For a long time now, opponents of gay relationships have claimed that there is no moral, biblical, or theological warrant for taking a welcoming and affirming position. In order to demonstrate that this is not so, I set forth in Chapter Three a biblical and theological case for the consecration of same-sex unions. I show that the biblical prohibitions were addressed to specifically hedonistic or exploitative forms of sexual conduct, not to those in which mutuality and concern for the other were paramount. These biblical passages are silent about mutually and exclusively committed same-sex love, silent about same-sex couples who are forming families and raising children. I argue, furthermore, that marriage has provided a context for nurturing companionship, commitment, and community. Gay couples are able to embody all three of these ends of marriage, and so there is no reason in principle that their unions should not be honored. If a strong biblical and theological case exists for affirming gay couples, then one of the main reasons for denying them this legal and political affirmation falls away.

Part Two turns to law and politics. Chapter Four delves into recent legal decisions on gay rights. The issues here are basically two: the first is gay identity, which has been conceived primarily in reference to the rights of individuals;⁵ yet recent progress in the acceptance of gay identity has opened the door to a new issue, namely, the appropriate level of legal and societal support for gay couples and their families.⁶ Regarding both of these issues, the legal arguments are, in turn, basically of two types: equality arguments and liberty arguments. Equality arguments seek to secure the same legal benefits for gay people that all other people in our society take for granted. Liberty arguments aim to protect the integrity of gay life choices from unwarranted interference by the majority. To put it succinctly, one has a right to be gay or lesbian without undue interference. Most recently, liberty arguments have focused on the right to marriage, the right of a gay or lesbian person to become bound legally to the person he or she loves.

Chapter Five considers all these issues in relationship to the nature of democratic change. I argue that finding a way forward will depend on the renewal of a welcoming democracy, one that encourages free participation on the part of all citizens. The best way to do this is through a form of democratic engagement known as deliberative democracy. Deliberative democracy requires that a person be willing to give reasons for his or her views in terms that others can readily understand. It also requires that the deeply held views of all citizens be respected and weighed carefully in the formation of democratic decisions. One of the key points of the chapter is this: how we treat one another and conduct our debates is just as important as the results we eventually reach.

I now devote the remainder of this introductory chapter to putting things in perspective. I will try to provide background to our current debates, a historical survey of different forms of homoeroticism, an introduction to the research on sexual orientation, and an account of how the contemporary quest for marriage equality arose. This introductory material is crucial to the chapters on religion, law, and politics that follow.

Background to Current Debates

Today the quest for social and legal recognition of same-sex relationships has fared much better than it did for the condemned group of husbands in sixteenth-century Rome. A new idea when the book first appeared, gay marriage now is permitted in many countries around the globe and in seven American jurisdictions (Connecticut, Iowa, Massachusetts, New Hampshire, Vermont, and the District of Columbia), with more likely to follow. According to a number of polls, a majority of Americans now approves of gay marriage.

To be sure, these developments have provoked strong negative reactions. The new politics of gay recognition has come dramatically into conflict with an older politics of social control. In response to gay and lesbian demands for inclusion in the institution of marriage, others have insisted that changing the definition of who has access to marriage will have bad consequences for society as a whole. Although Europe and Canada have managed the political transition from control to recognition with relatively less social upheaval, in the United States the move toward recognizing same-sex relationships has led to a formidable backlash. This backlash began in the early 1990s, when the state of Hawaii seemed ready to grant gay marriage under court order. It culminated in the 2004 presidential election, when voter referenda that amended the state constitutions to ban gay marriage passed with comfortable majorities in eleven states.⁷

Nevertheless, we need to keep this negative reaction on both the political and ecclesiastical fronts in perspective. The quotation at the head of this chapter from Alan Bray implies that the conflicts we are currently experiencing reveal something important about the anxieties, preoccupations, and fears that drive our culture. So deep-seated are these fears that it is naive to expect them to vanish overnight. But Bray’s point is that the intensity of the fears and the way they manifest themselves tell us something important about ourselves. What do we make of a society that whips itself into a frenzy over the prospect of gay marriage but greets the overwhelming evidence of torture by its own country’s military leaders with a casual shrug of the shoulders?⁸ Or how do we explain the fact that, when it comes to same-gender sexuality, some religious-minded people are quick to interpret biblical prohibitions strictly and literally, yet when the subject is violence or warfare, they find flexibility and numerous alternative interpretations to the Sermon on the Mount’s admonition to turn the other cheek?

This invites us to cast a critical eye on the past to discern what light it can shed on the issue at hand. Relevant analogies are not hard to find. The first and most obvious is the American experience with slavery and racism. For over 245 years, chattel slavery was imposed on millions of humans who were taken, against their will, from their homeland in Africa.⁹ Just as the forces arrayed against gay rights today are dominated by appeals to traditional Christian belief, slavery also was defended by elaborate and self-assured appeals to biblical texts. In fact, more than half of all pro-slavery tracts in the nineteenth century were written and zealously defended by Christian ministers.¹⁰ That our ancestors were so clearly misled in their reading of Scripture does not, of course, mean that all appeals to Scripture are wrong. Indeed, the appeals I will make in this book are thoroughly grounded not only in Scripture but in traditional religious convictions as well. Still, the fact that our predecessors could be so misguided concerning social issues in the past should give us pause. Are we at risk of making similar mistakes today?

Not only have slavery and prejudice against gays and lesbians been supported by religious warrants, but they have followed a similar path of social upheaval. When slavery was finally abolished in 1865; when former slaves were explicitly granted equality under the law for the first time in 1868; and when former slaves were finally assured the right to vote in 1870 — one of the results was a powerful backlash of racial resentment, which was concentrated in the states of the South but was felt throughout the country.¹¹