Same-sex Marriage and The Wall of Separation

The United States’ tradition of separation of Church and State rests upon the First Amendment of the Constitution: “Congress shall make no law regarding an establishment of religion, or prohibiting the free exercise thereof…”

Concerned that the state constitution of Connecticut did not explicitly affirm support for religious freedom as guaranteed by the federal constitution, the Baptist Association of Danbury, in October of 1801, wrote to the recently elected President Thomas Jefferson to ask him to confirm his support for religious liberty.

It was in his reply to the Baptist Association that Jefferson used the expression “wall of separation” (a description not found in the Constitution per se). He confirmed his conviction that “religion is a matter which lies solely between Man & his God.”

He went on, “I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should ‘make no law respecting an establishment of religion, or prohibiting the free exercise thereof,’ thus building a wall of separation between Church & State.”

The First Amendment is generally construed as a guarantee of the people’s freedom to follow their religious preferences without governmental interference. In effect the framers were saying that religion is none of the government’s business. 

This guarantee of freedom of religion, however, has been subjected to additional analysis and interpretation. Today the wall of separation not only protects religion from State interference, but also protects the State from religious interference.

Many of those who protest legalized abortion defend the unborn’s right to life on the basis of their religious conviction that life comes from God, is sacred for that reason, and deserves protection from conception onward. But if there is a wall of separation between Church and State, then arguments based on religion are not admissible in the polity of the courts.

Many of those who oppose same-sex marriage argue that such unions are a violation of God’s intention that marriage be between one man and one woman. But if there is a wall of separation between Church and State, then arguments based on religion are not admissible in the polity of the courts.

In the current climate, appeals to religious convictions carry no weight in the determination of what is or is not legal in the judgment of many (a majority?) of our federal or state courts.

In 1965 theologian Karl Rahner, an expert and consultant for the bishops at the Second Vatican Council, predicted that the Church of the future “will be a Diaspora-Church” and its mission and message will no longer find the support of “homogenous public opinion.” His use of the term “diaspora” implies that the Church will be a stranger in a strange land, like the Jews of old often were.

Rahner recognized that the era of a Christian Europe has ended, that Europe’s culture and society no longer pre-suppose that most people will be guided by overtly Christian principles. He could have added that the same would be true in the United States, that soon most citizens (or at least their Statesmen) will no longer be guided by religion-based principles in civil government.

Even if it can be shown that many if not most of our founding fathers were not particularly religious people, there remains nonetheless that acknowledgment that their philosophy of freedom and government were shaped largely by the then prevailing standards of the established Christianity of Europe.

Even Jefferson acknowledged that the foundation for preserving freedom had to be the common recognition that freedom is of divine origin. He wrote: “And can the liberties of a nation be thought secure if we have lost the only firm basis, a conviction in the minds of the people that these liberties are the gift of God? That they are not to be violated but with His wrath?” (Notes on the State of  Virginia by Thomas Jefferson, query 18).

Times have changed. As has been noted for several decades, the concept of “freedom of religion” has now led to the concept of “freedom from religion.” The amendment which precluded the establishment of religion has become a ban on the influence of religion on the legislation and judgment of civil government.

In his response to the Supreme Court’s June 26, 2015, decision requiring all states to license and recognize same-sex marriage, Archbishop Joseph B. Kurtz as President of the United States Conference of Catholic Bishops labeled the court’s judgment “a tragic error.”

The Archbishop argued the Church’s opposition to same-sex marriage on two grounds: the one religious, the other natural.

The Catholic religion opposes same-sex marriage as a violation of God’s intention as found in the biblical account of the creation of man and woman in Genesis 2:24 (“That is why a man leaves his father and mother and clings to his wife, and the two of them become one body”). Further, the Archbishop appeals to the New Testament, noting that “Jesus Christ, with great love, taught unambiguously that from the beginning marriage is the lifelong union of one man and one woman. As Catholic bishops we follow our Lord and will continue to teach and act according to this truth.”

The Archbishop’s explanation was primarily an assurance to Catholics that the Church’s teaching about marriage remains firm, that the Court’s decision does not displace Catholic faith or practice regarding marriage. He encouraged Catholics to persevere in the Church’s effort to protect marriage as it has been understood for millennia even in the face of disagreement, hatred or persecution from their neighbors.

In addition the Archbishop appealed to nature as a criterion for rejecting same-sex marriage, noting that “The unique meaning of marriage as the union of one man and one woman is inscribed in our bodies as male and female…Mandating marriage redefinition across the country is a tragic error that harms the common good and most vulnerable among us, especially children. The law has a duty to support every child’s basic right to be raised, where possible, by his or her married mother and father in a stable home.”

He sees the Church’s understanding of marriage as an “unchanging truth…rooted in the immutable nature of the human person and confirmed by divine revelation.”

Arguments based on religion or religious convictions will have little or no influence in either the legislature or the courts of our land in the present climate. Opposition to same-sex marriage and protection of the traditional understanding of marriage will have to be based on nature and experience.

The Court’s Roe v Wade decision of 1973 “protecting a woman’s right to abortion” has been the law of the land for nearly 50 years. Religious arguments are not likely to overturn the court’s ruling –at least in the current climate of “freedom from religion.” But after nearly five decades of the experience, support for destroying human life under the guise of freedom of choice is eroding. Attention is turning from the rights of the mother to the rights of the child –and science has gone a long way in supporting the realization that life in the womb is human life.

Arguing against abortion on religious grounds will have little effect in our courts, but arguing for protection of life in the womb on the grounds of our American testament that “all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness” (truths which we declared to be “self-evident”), then we have a legal, natural basis for overturning the 1973 decision.

I suspect that something similar is applicable to the court’s decision about same-sex marriage. There will be a time when this “new found freedom” will be celebrated and pursued with abandon, but over time the flaws (“tragic error’) of the decision will become more and more manifest.

If same-sex marriage is contrary to God’s plan, as the Church’s magisterium holds, then the violation of that plan will produce many unwanted consequences. If our nation as a whole were to experience a conversion back to God,  religious appeals opposing same-sex marriage could be effective in repealing the Obergefell v. Hodges decision of 2015. Until that conversion takes place opposition to the decision will have to be based on secular, constitutional and natural (experiential) argumentation.

Justice Anthony Kennedy wrote the majority opinion in the 5 to 4 vote, saying that same-sex couples should have the right to marry, that “the Constitution grants them that right.”

Justice Antonin Scalia wrote the dissenting opinion, warning that the court’s decision is a “threat to American democracy” and Justice John Roberts wrote that the decision “has nothing to do with the Constitution.”

As we now struggle to see which right is more important in the abortion controversy (the mother’s or the child’s), so we shall struggle with which right is primary in the case of same-sex marriage. In the effort to protect the rights of gay people, have we violated the rights of traditional society and family?

In the meantime we find one of the Church’s basic convictions about life, family, and God’s plan put to the test. It remains to be seen (over the long haul) how the Supreme Court's decision will play out in society.

St Augustine said, "Love God and do as you want." The Courts say, "Ignore God and do as you please".