How Would Jesus Rule on Same-Sex Marriage?

As the U.S. Supreme Court prepares to rule on same-sex marriage, Christians on both sides of the issue continue to invoke Jesus in support of their position.  Or, more precisely, they invoke a vision of ethics and morality (i.e., inclusivity vs. traditional moral values) that they associate with Christian teaching.  But how would Jesus actually have responded if asked “how should the Supreme Court rule on same-sex marriage?”

That’s anachronistic, of course, but it’s the kind of question that “teachers of the law” routinely flung at Jesus, usually with the intention of entrapping or discrediting him.  The legal elite of Jesus’ day peppered him with hot button legal and ethical questions like “should we pay taxes to Caesar” and “to whom do I owe neighborly duties?”  Often, these questions involved marriage and sexuality:  May a man divorce a woman for any and every reason?  How should a woman caught in adultery be punished?  If a woman marries seven different husbands in succession and then dies herself, which one is she married to in Heaven?  It’s not hard to imagine CNN legal analyst Jeff Toobin cornering Jesus and asking him, “Hey Jesus, how about same-sex marriage?”

It would be presumptuous of me to say how Jesus would answer that question, so I won’t.  But I will offer three observations from things Jesus actually said in response to similar questions.

First, Jesus would likely have faulted both sides of the debate for an excessively materialist perspective.  On one side, we hear that marriage is about procreation and child rearing.  On the other, that it’s about love and companionship.  But Jesus did not understand marriage primarily in terms of its temporal or material effects.  For Jesus, marriage was a spiritual representation of divine relationships.  According to Jesus, God created man and woman—male and female—in the image of God, mirroring the unity and diversity within the Godhead.  Jesus and later apostolic writers referred to Jesus as a bridegroom and the Church as his bride.  Jesus explained that in Heaven people would not be married to one another, since they would be in perfect union with God.  Thus, the ultimate good of marriage was not that it served immediate material needs but that it celebrated the eternal nature of God.

This understanding of marriage has precious little purchase in the contemporary, hyper-materialist world.  Even those who recognize marriage’s “spiritual” component usually mean that psychosomatically—marriage feeds long-term emotional and pyschological needs.  We’ve lost any sense of human institutions as good because of their correspondence to divinity.  Across the ideological spectrum, we’ve given in to Richard Posner’s wish of “unmasking and challenging the Platonic, traditionalist, and theological vestiges in Enlightenment thinking.”  It’s safe to say that Jesus would have had a different take.

Second, and in some tension with my first observation, Jesus might have responded to a question about same-sex marriage by distinguishing between the spiritual ideal and pragmatic legal rules.  That is what Jesus did on divorce.  When asked whether a man should be allowed to divorce a woman for any and every reason, Jesus responded that Mosaic law allowed for divorce because of the hardness of people’s hearts, but that things weren’t that way from the beginning.  Jesus was not advocating a change in the law, but a change in people’s hearts.

Christian thinkers have long debated the distinction between legal and spiritual marital norms.  When Britain was liberalizing its divorce laws in the 1940s, my two favorite Christian writers, J.R.R. Tolkien and C.S. Lewis, took different views on whether Christians should advocate that secular legal institutions mirror the spiritual ideal.  Tolkien opposed the divorce reforms on the grounds that the spiritual should inform the legal.  Lewis argued for a pragmatic differentiation between the spiritual and the legal.  In my view, Lewis was closer to the position staked by Jesus.

Finally, chances are that Jesus’ answer would go to issues far beyond the narrow question presented.  This was almost invariably Jesus’ pattern when confronted with hot-button legal issues. He always found the question itself less important than the darkness it exposed.  Thus, he turned the question about paying taxes to Caesar into condemnation of his questioners’ failure to honor God, the adultery penalty question into an indictment of his interlocutors’ self-righteousness, and the divorce question into an exposé of spiritual hardness.  I shiver to think of how he might turn the same-sex marriage question back on us.  All of us.

Welcome Back to Dan Crane

Welcome Back to Dan Crane (left), who will be guest posting with CLR Forum this month and next. Dan is the Frederick Paul Furth, Sr. Professor of Law at Michigan. He joined us last fall for an online debate with Barak Richman on antitrust and the clergy employment. Great to have you back, Dan!

More Complicated

In chapter 6 of The Tragedy of Religious Freedom, I discuss Cass Sunstein’sThe Tragedy of Religious Freedom work on judicial minimalism and focus on a particular variation–Burkean minimalism.  The method that I adopt for resolution of various religious liberty disputes draws on Burkean minimalism in several respects, but also departs from it in significant ways.  My differences with Professor Sunstein are summed up in the aphorism, “Less Burkeanism, More Burke,” and the discussion in that chapter considers the ways in which Sunstein’s views about minimalism–which are pragmatically grounded–differ from my own–which are grounded in the reality of the complexity of political affairs, the conflict of human aspirations, and the irreducibility of human interests to any overarching theory.  The method that I describe and defend is motivated, in part, by these complications.

Notwithstanding my admiration for judicial minimalism–and, indeed, for Simplerminimalism as a general, guiding ethic of political life–I am not the first to suppose that Sunstein’s attachment to it was always less than entirely secure.  It was, as he himself acknowledged, strategic and instrumental.  This is why I am somewhat disappointed, but not very surprised, to see that Sunstein has recently published Simpler: The Future of Government.  Of course, the book is not about the judiciary; it describes Sunstein’s time at the head of OIRA.  Its overall claims seem to rest on the assertion that government has become simpler during the last four years, that it will or ought to become simpler still, and that this is a wonderful thing.  I have not read the book, and will of course defer to Professor Sunstein on the question whether the government has issued fewer regulations as a numerical matter.  Government during the last four years does not seem so very much simpler to me than it was before, but I’m prepared to be persuaded otherwise.  But apart from these descriptive issues, I have the distinct feeling that I will resist in particularly strong terms the normative claim–which seems to be made in the book–that the simplification of government is for the best.  Indeed, it seems to me that a true minimalist would press just the opposite point: we are complex, and we need a government that can account for, and accommodate, that complexity.  We don’t need simpler; we need more complicated.