Tag: Obergefell v. Hodges

Link Wednesday 5: SCOTUS Ruled; Now What?

It’s amazing what a few days away from the office can do to clear your mind. I just got back from Wisconsin this Sunday after visiting family. Wow did a lot happen since I wrote last. SCOTUS delivered their big decision in Obergefell v. Hodges. There was much despair. And there was much rejoicing.

In Evangelicalism, conversations moved to what needs to happen in its community regarding the decision. Amidst this background, I came across two very interesting sets of questions from very different points of view. They arise from the same tradition and use the same text.

Kevin DeYoung
Kevin DeYoung
Kevin DeYoung of The Gospel Coalition issued “40 Questions for Christians Now Waving Rainbow Flags.” Here are some of the questions he asked:

  • “3. How would you make a positive case from Scripture that sexual activity between two persons of the same sex is a blessing to be celebrated?”
  • “7. When Jesus spoke against porneia* what sins do you think he was forbidding?”
  • “11. As you think about the long history of the church and the near universal disapproval of same-sex sexual activity, what do you think you understand about the Bible that Augustine, Aquinas, Calvin, and Luther failed to grasp?”
  • “12. What arguments would you use to explain to Christians in Africa, Asia, and South America that their understanding of homosexuality is biblically incorrect and your new understanding of homosexuality is not culturally conditioned?”

Matthew Vines
Matthew Vines
Matthew Vines, founder of The Reformation Project, issued a rejoinder, similarly titled: “40 questions for Christians who oppose marriage equality.” He asked such questions as:

  • “3. How many meaningful relationships with lesbian, gay, bisexual, or transgender (LGBT) people do you have?”
  • “12. Do you believe that same-sex couples’ relationships can show the fruit of the Spirit: love, joy, peace, patience, kindness, goodness, faithfulness, gentleness, and self-control?”
  • “17. Did you spend any time studying the Bible’s passages about slavery before you felt comfortable believing that slavery is wrong?”
  • “18. Does it cause you any concern that Christians throughout most of church history would have disagreed with you?”

Each set of questions demarcates communities. I won’t comment on the virtues and vices of either. I assume my readers are educated. I will reiterate something, though: one faith, one text, very different questions.

Amanullah De SondyAfter I read these, I was listening to a podcast with Amanullah De Sondy. He was discussing his book, The Crisis of Islamic Masculinities, on the New Books Network. There he made some keen observations about religious communities.

One of these has to do with the appropriation of texts. He asked what a text looked like outside the perspective of hegemony. In other words, if you are not part of a dominant class—whatever social marker that is—how does that affect how you envision a text or sayings? Both DeYoung and Vines are speaking from a place that may or may not be wrong. Which is in a more privileged position? Does privilege vary from situation to situation? If texts had as stable of meanings as we might like them to, there probably wouldn’t be as many interpretive traditions (=denominations, sects, religions) as we have today.

De Sondy’s comments had me thinking how much theology and legal reasoning try to make sense of native ambiguity in texts: ambiguity they recognize and wish to elide or naturalize into a preferred reading for their community. This ambiguity, however, is what I find so inviting and exciting about religious studies.

Frederick Douglass
Frederick Douglass
To illustrate interpretation outside hegemony, my friend and classmate, Samantha Nichols, wrote a post about the 4th of July. She included a speech by Frederick Douglass (delivered in 1852, before the Civil War) on the discourse surrounding the holiday:

I am not included within the pale of this glorious anniversary! Your high independence only reveals the immeasurable distance between us. The blessings in which you, this day, rejoice, are not enjoyed in common. — The rich inheritance of justice, liberty, prosperity and independence, bequeathed by your fathers, is shared by you, not by me. The sunlight that brought life and healing to you, has brought stripes and death to me. This Fourth [of] July is yours, not mine. You may rejoice, I must mourn.

What I am highlighting is that you cannot escape your life circumstance and how that colors your interaction with texts (among other things). Sometimes my circumstances prompt me to ask certain questions that people with other social markers ignore, and vice versa. Part of your life circumstances is the groups to which you belong and the groups you reject (for more on this, see my post on community).

I ask this to my reader: how do you arbitrate between two people who understand themselves as faithful to the same tradition, but have different life circumstances informing their interaction with the tradition? I conjecture that it’s probably whatever person’s views most closely align with your own. These debates, while ostensibly about who is most faithful to an original text, at least lend themselves to drawing battle lines: these sets of questions allow persons and communities to identify and align themselves with these two men to achieve certain aims.

*porneia is a Greek word. While this could simply be regarded as a rhetorical move to dismiss the opinions of people who do not know the language in which the New Testament was written, the fact that the New Testament was written in a language other than English seems to invite attention to what is happening in the original language. However, you could also just as easily say that the vast majority of people do not live out their religion by any reference to exegetical and theological tools like Greek—I think it worthwhile to mention that you would need to decide how much that religion is defined by official/institutional means and how much of it is defined on the ground by living, breathing believers.

Link Thursday (#4): Obergefell v. Hodges: The “True” Definition of Marriage

I apologize for not getting this out on Wednesday. I also realize that these “Link Wednesdays” are turning into substantial posts in themselves. Let me know if you prefer substantial posts for Wednesdays or ones with links and very minimal annotation at ilostmyprayerhanky At gmail.

Jim Obergefell
Jim Obergefell
What is the purpose of marriage? Is it to produce children? Is it to enable people to connect emotionally over a lifetime? Does it have more than one purpose?

At stake in the Supreme Court case Obergefell v. Hodges is whether or not states are required to give marriage licenses to same-sex couples and to recognize marriage licenses issued by other states. The summary of the oral arguments and amicus briefs for and against are here, here, here, and here.

This post will look in detail at the religious freight brought to bear in the amicus brief submitted by The Coalition of Black Pastors and Christian Leaders, aka The Coalition of African-American Pastors. Amicus Curiae are documents submitted by persons strongly interested in a case but not actually involved in it. I am interested in this case, because Black Protestants make up the next biggest opponent of same-sex marriage behind White evangelical Protestants. Since I am somewhat familiar with evangelical religious reasoning against same-sex marriage, I was curious to see if there was overlap with Black church leaders’ legal reasoning.

Here are their three major arguments that will be covered in turn (page numbers from the document will be cited parenthetically):

  1. The caseLoving v. Virginia does not create marital inclusivity as far as the plaintiffs wish
  2. Unelected courts should not decide on morality; that should be left to legislation and the People
  3. The Sixth Circuit Court did not have to employ strict definitions in considering the states’ marriage laws (iii)

Before going into the argument, the pastors and Christian leaders provide a glimpse into their identity and aims in this quote:

For Amici, the Bible expresses sound, ethically-grounded doctrine upon which individuals beneficially rely regarding family matters. Amici bear the responsibility to oppose unsound, morally-relative doctrines and to oppose practices that are harmful to the following of God’s time-proven teachings. Amici, therefore, hold a vested interest in a State’s right to correctly define marriage (1; bold mine).

On to the arguments.

The case of Loving v. Virginia (1967) had to do with anti-miscegenation laws. Anti-miscegenation laws were found unconstitutional for violating the Equal Protection Clause of the Fourteenth Amendment.

The plaintiffs in Obergefell v. Hodges argued that denying marriage licenses violated the Equal Protection Clause, using Loving v. Virginia as precedent. The Amici do not see this as valid for a few reasons.

Their big one involves the first alternative use of Loving in Baehr v. Lewin (1993). Baehr held that sexual orientation was a “suspect class” like race was in Loving. Suspect class is “a class of individuals that have been historically subject to discrimination” so that their involvement in a discrimination case is subject to “strict scrutiny.” To survive this level of judicial scrutiny, a State has to have had a compelling reason to limit fundamental rights and narrowly defined the law so as not to engage in discrimination. Examples of suspect classes subject to strict scrutiny include race and religion. One of the questions at stake is whether marriage is a fundamental right.

The Amici argue that the Supreme Court in Loving never contemplated or addressed same-sex marriage (7). This argument gets at origins. In this line of thinking, the closer reasons (practices, beliefs, etc.) are to some group’s original intentions, the more authority it carries. What’s interesting about this originalist interpretation is that the Founders never envisioned African-American voters, but here we are. Time brings out new questions, and, many times, new answers.

They go on to say that “Loving emphasized the importance of marriage to all Americans, in the true sense of the word” (8, bold mine). Words do not have true senses. They have definitions based on how people accept them. If I say someone is gay, you aren’t going to think I’m meaning it in the “true sense” of happy. Why is marriage cordoned off from this ability to change meaning over time? Is it because so many personal investments revolve around how its definition?

And yet, the fact that words do not have eternal, true senses does not mean that definitions are merely idiosyncratic either. While words can be defined however a group wants to define them that does not mean words change meaning overnight. It takes time and people agreeing with definitions. If I say tomorrow that “marriage” means that someone likes chocolate, good luck with that catching on, particularly considering my readership numbers.

These rhetorical strategies of “origins” and “classification” go back to what I have covered on practice and community. The use of origins is a great strategy, because it gives your case a sense of establishment, authority (based on heroes at the beginning of a discourse), and longevity. Sometimes, it is also used to ignore all the intervening steps (history) between the proposed origin and the present (See Monica Miller’s post on labels). However, it also serves the religious element in Lincoln’s system of religious discourse in attempting to make historically contingent facts beyond dispute: religion is at least “temporal, contextual, situated, interested, human, and material dimensions of those discourses, practices, and institutions that characteristically represent themselves as eternal, transcendent, spiritual, and divine.” In other words, this move to origins is meant to stop argumentation, because origins are where authority rests. If God isn’t the authority in this case, it is the immutable and inerrant Founders, treated much the same way as inerrant Scripture.

The Amici also move beyond legal reasoning to employ the “true definition” of marriage, again, using classification. Classification in political (one can easily argue that religion involves this same discourse since it too manages relationships between parties) discourse is never neutral or apolitical. So when they employ Robert Reilly to give the true definition of marriage–the context where the “procreative and unitive purposes of sex” (14-15, no. 13) occur–debate is curtailed, because by definition, same-sex couples cannot be married since they cannot procreate with each other, and therefore, do not meet both of the required elements. I’m not going to try to insult your intelligence too much, but following that definition, here are some heterosexual acts and statuses that should bar a person from marriage:

  • women with hysterectomies
  • men with vasectomies
  • the elderly
  • couples who do not wish to have children
  • couples who engage in any sex act that does not finish inside a vagina
  • contraception
  • abortion
  • divorce, because this eliminates the possibility of future children
  • post-menopausal women

This list is not exhaustive, but it shows that the State is not merely interested in defining marriage by the bare fact of procreation. What does it reveal about the “true definition” of marriage? I suggest that it at least shows that interests beyond the State’s are at play, and I would argue that they are religious ones. The definition is not beyond dispute but reflects the interests of the pastors. You can be the judge of how much or little specific religious discourse should play a part in judicial discourse. The aim of this blog is to uncover the strategies at play among religious and sex discourses. I have around five pages of single-spaced notes on the brief if you care to discuss this further. There is much I left out that I could have covered and that someone might say I overlooked. If so, comment or email me. Otherwise, I await the Court’s decision which might come out today.