Marriage and the Constitution

Who among the Founding Fathers would have ever thought that some day we might draft an amendment to the Constitution defining marriage as a relationship between a man and a woman only? But with the recent ruling of Massachusetts' highest court, to the effect that same-sex couples must be accorded the right to marry, we may not be far from doing just this. For those who find the possibility of same-sex marriages repugnant, amending the Constitution may be the only way to preserve what most people in this country believe marriage is at its core.

If the chaotic state of Texas' own Constitution is any indication, however, solving major questions of social policy by amending constitutions should be a much more serious business than it all too often is. Last resort approaches are rarely helpful as opening gambits. Unless the highly reactive quality of much current thinking about same-sex unions improves, we are not likely to generate a very edifying discussion and debate about what marriage is and isn't, whatever may be the outcome of efforts to make it finally a constitutional issue.

Consider, for example, the nearly hysterical outcry of Supreme Court Justice Scalia when anti-sodomy laws were recently overturned by his court. He fulminated that the very fabric of society was being rent asunder by our failure to hold up committed heterosexual relationships as the norm. But both divorce and adultery statistics make plain that for decades now, a large segment of our society has failed to abide by this norm, almost to the extent that Judge Scalia's fellow Catholics are failing to abide by their church's bans on the use of contraceptives. Are the errant behaviors merely signs of sinfulness, or are they, perhaps, more of an indicator that many people nowadays actually believe something quite different from what they say they believe?

Consider also the principal pattern of reasoning that is shaping most of the current arguments against same-sex unions: God has created us male and female, and intends for us to create heterosexual and not homosexual unions. No biblically-informed Jew, Christian, or Muslim would disagree with this reading of the first two chapters of The Book of Genesis. But therein lies the rub: a religious justification for a social policy of a society pledged never to force religious ideas or practices upon its citizenry. Maybe revising the Constitution is, after all, the only way around this consideration. But before we get there, maybe we ought to try opposing same-sex unions on other than religious grounds. Are there any other grounds?

Jews and Muslims will have to weigh in on the question of same-sex unions from their own respective backgrounds. As a Christian, though, I find it a pretty weighty consideration how selective most of us are in applying our Bible to questions of human sexuality. For example, certain biblical texts are slam dunks against the approval of gay and lesbian sex. But even more biblical texts are slam dunks against divorce. If we appeal to the Bible to deny same-sex partners the legal rights we grant to their heterosexual counterparts, it would seem highly dubious not to apply the same standard to the divorced in our midst (who outnumber gays and lesbians exponentially, and probably always will.)

There may be fellow Christians out there who are still prepared to put divorced people in the dock, and keep them there. I just haven't met any, for a very long time. Just as I haven't met anyone lately who argues that the failure to "be fruitful and multiply" invalidates a marriage as marriage. Or who say that you can get divorced but that you can't get married again. Once upon a time a lot of people did say stuff like this. Why am I not running across them anymore? Most likely because we are all operating under the assumption that as a rule book for today, the Bible needs some work, and that as a whole, the Bible serves us better as a narrative of grace and mercy than as a rule book anyway. Where we are going wrong is in not applying this very fruitful premise to all of the issues of human sexuality with which we must deal today, homosexuality included.

Maybe those in our society who approach the gay rights questions from a secular, ethical point of view more than a religious one are already up and ready to move the rest of us forward to a responsible resolution of the newly emerging debate on same-sex marriage. But I doubt it. A constitutional solution? Perhaps. A lot more thinking and deliberating in an atmosphere of mutual respect? Now that's the ticket.