“Proposition 8,” passed last year by California voters in a statewide referendum, added an amendment to the constitution of the state of California that reads, “Only marriage between a man and a woman is valid or recognized in California,” effectively forbidding same-sex marriages in the state. Currently, Proposition 8 is on trial in a federal appeals court in San Francisco to determine the federal constitutionality of the amendment. The court’s decision will have ramifications not only in California but throughout the country. Twenty-seven states have constitutional bans on same-sex marriage (some others have legislative statutes prohibiting it), so this case in California will establish legal precedent for future cases in other states. Regardless of the ruling, though, appeals will mostly likely land the case in front of the U.S. Supreme Court.
The plaintiffs in the case will argue that Prop 8 violates the civil rights of same-sex couples and that same-sex marriage does not undermine traditional marriage or harm children or society in general. Essentially, their strategy is to show that voters and the Prop 8 would motivated by discrimination and bigotry towards homosexuals, and therefore a violation of constitutional rights. The defendants will argue that traditional marriage is best for children and the fundamental building block of social order, and show that banning same-sex marriage does not violate the Constitution.
The legal arguments in this case are heated and very complex. The most compelling and important argument, though, may not make it into the courtroom – the argument from “sphere sovereignty.”
Seana Sugrue explains in The Meaning of Marriage (ed. Robert George and Jean Bethke Elshtain) that marriage is a pre-political institution, a form of social order independent of the state: “The reality of sex differences between men and women, leading to the potential for offspring, is essential to the pre-political foundation of marriage.” It is this place of marriage in the social order that same-sex marriage advocates seek to overhaul. Sugure writes, “Marriage rooted in procreation and sexual differences is to be replaced by marriage for the gratification of two consenting adults.” Her main concern is that by allowing the state the right to define marriage, “’same-sex ‘marriage’ requires a condition of soft despotism to exist” (italics mine). She reasons that “In claiming for homosexuals the right to marry the state also claims for itself the ability to declare what constitutes marriage . . . It transforms marriage from a pre-political obligation into its own creation.”
Once marriage becomes subjugated to the state as an artificial institution of the state, Sugrue argues that it will become dependent on the state and will need to be “coddled.” The implication is that “the state will increasingly be called upon to create the social conditions to protect these unions,” thus enlarging its power into other spheres.
In the history of the human race as told in Scripture, the institution of marriage precedes the institution of the state. God establishes marriage in Genesis 2:
“Then the LORD God made a woman from the rib he had taken out of the man, and he brought her to the man.23 The man said,
“This is now bone of my bones
and flesh of my flesh;
she shall be called ‘woman,’
for she was taken out of man.”
For this reason a man will leave his father and mother and be united to his wife, and they will become one flesh.”
The beginning of the state can arguably be traced back to Genesis 9 (after the flood) where God establishes a principle of justice for punishing the crime of murder: “whoever sheds the blood of man by man shall his blood be shed.” Both institutions originate with God and derive authority from God, but God did not delegate to the state authority over marriage or to define marriage.
The reason I oppose same-sex marriage as a Christian is not because I fear a homosexual married couple living next store, nor because I think the children of such marriages will be damaged (though there is a growing body of evidence for this), nor because I think my or my friends’ marriages will be diminished by it. The reason is the intrusion of the authority (“sphere”) of the state into the family and the Church.
If the state re-defines marriage to legitimize same-sex relationships, the state will use its power against the family and the church when these institutions oppose same-sex marriage. Throughout the country, courts are already attacking churches and people who refuse to legitimize same-sex marriage. For instance, a court in New Jersey stripped a United Methodist congregation of their tax-exemption status because they refused to allow a same-sex union ceremony on church property. Other law suits have been brought successfully against photography companies who refuse to do same-sex weddings.
What is at stake here is not just traditional marriage, but religious freedom – the freedom to follow one’s conscience even if it is at odds with the state.