I am re-publishing this post from February of 2015 on former Chief Justice Roy Moore, now that he may succeed to Attorney General Sessions' old Senate seat, amid the controversy of his alleged sexual peccadilloes regarding underage women. The question I would invite you to ponder as you read it is Is this really the best the Republican Party -- the Party of Lincoln, the Party of Emancipation, the part of Reconstruction -- can do?
The inimitable Chief Justice Roy Moore of the Alabama Supreme Court – the same Judge Moore who in 2003 attempted to retain the marble monument of the 10 Commandments in the Alabama judicial building – is in the news again, this time asserting the Augustinian roots of his preference for theocracy over secular, constitutional, religion-neutral republican government by refusing to respect the Supreme Court’s recent stay against the Alabama State Attorney General’s order to suspend same-sex marriage, pending a definitive final decision on that issue. On both civil and religious grounds, of course, Judge Moore’s position is utterly without merit. The most unfortunate aspect of that position, however, is that, while Chief Justice Moore is himself a clown straight out of the already-overcrowded Republican Klown Kar, his refusal trivializes an issue that – unlike Chief Justice Moore himself – we should take with utter seriousness.
First of all, a caution. I notice a tendency in the progressive media to celebrate – prematurely, in my estimation – the Court’s refusal to allow the Attorney General’s moratorium on same-sex marriage to proceed unimpeded. The dissent of Justices Clarence Thomas and Antonin Scalia was based, not on constitutional law, but on considerations of “judicial decorum,” whereby the Court has customarily allowed State laws to stand, pending judicial review. Justice Scalia joined the dissent, in which Justice Thomas explicitly criticized the Court’s stance: "This acquiescence may well be seen as a signal of the court's intended resolution of that question. … This is not the proper way [for the court to carry out its role under the Constitution] and, it is indecorous [Justice Thomas’s word] for this court to pretend that it is." Justice Thomas is right, of course: the chickens of the Supreme Court’s definitive decision on same-sex marriage have not hatched yet. Those of us who support marriage equality across lines of sexual orientation would be well advised to leave the champagne in the bottle until the eggshells are broken. All we are sure of having at this juncture is a single cracked egg. That hardly adds up to even a complete omelet, much less a whole chicken, and least of all a KFC Family Meal.
That said, I will give my customary argument in favor of the permissibility of same-sex marriage – to which I have never seen a credible, let alone decisive, rebuttal. Marriage has a twofold aspect: civil and religious. In order to be granted legal recognition for purposes of property inheritance, hospital visiting rights, pension / Social Security issues, etc., etc., two people must be civilly married. In many religious traditions, however, access to religious ceremonies and sacraments requires some kind of “sacramental” sanction, which usually means a “church wedding”. (I am using “church” now in its generic sense to include wedding ceremonies held in mosques, temples, gurdwarjas, etc., etc. “Church” is purely a shorthand term, and no slight whatsoever is intended or implied.) The important point is that neither type of marriage is necessary for the other. Non-religious people who never darken the door of a temple, mosque, church, or other place of worship need not have a “church wedding”: the civil validity of their marriage does not require it. Those few people to whom, for whatever reason, issues of property, inheritance, paternity / maternity, etc., etc. do not apply – theoretically, there could be such people – need not bother with a civil ceremony. In fact – this is me talking now – neither type of ceremony is necessary for a marriage, properly so-called Marriage is a relationship. A wedding – civil or religious – is a ceremony. Marriage is over here. Wedding is over there. Neither has any necessary connection with the other and the twain need never meet.
At least – important qualification – the twain need never meet within the context of a society which is governed by a constitutional tradition which respects (some form of, some cognate of, some variant of) the separation of Church and State. This is Chief Justice Moore’s blind spot. (In pre-Constantinian Rome, marriage was not an intrinsically religious ceremony: one could be married religiously before the gods and / or civilly by a Roman magistrate. Marriage became a Sacrament, and endowed with theological significance, only when the early Church took over the civil functions of the Roman government, including marrying people.) I say it is a “blind spot” because, in a society with a strong secular constitutional political culture, separation of Religion and State – not only, be it noted, Church and State – means that, from a civil standpoint, marriage has no legally sanctioned or recognized religious significance. From a civil standpoint, marriage is just one more type of contract. From a civil standpoint, there is no essential difference between the contract known as “marriage” and the contract known as “mortgage” or the contract known as “cell-phone service”. A contract is a contract is a contract. “A rose by any other name … “ … etc., etc. Furthermore, the principle of separation of Church (in this generic sense) and State – enshrined in the US Constitution by the “establishment” clause of the First Amendment – actually solves the problem for us. Consider: do we allow LGBTQIA people to have mortgages? Of course. Do we allow LGBTQIA people to have cell-phone service? Of course. Since a contract is a contract is a contract, there is no more reason, from a civil standpoint, to prohibit LGBTQIA people from entering into the contract known as “marriage” than there is to prohibit them from entering into any other type of – one more time … civil – contract. (In fact, any such prohibition would be, and has been found to be, unconstitutional under the “equal protection” clauses of the 5th and 14th Amendments. Cf. Windsor v. United States.) The Constitution solves the problem for us … a problem that never should have been a problem in the first place.
What about the prerogatives of religious organizations – churches, mosques, temples, etc.? Well … what about them? From a – one more time! -- civil standpoint, marriage is just a contract. This means that, civilly, marriage has no religious significance. Therefore, again civilly, there is no such thing – there can be no such thing – as a civil theology of marriage. In fact, the very phrase “civil theology of marriage” is an oxymoron, rather like “Donald Trump’s coiffure” or “Bill Maher’s piety”. Why? Because the “establishment” clause gets the government out of the theology-and-religion business. The religious significance of marriage is therefore entirely and exclusively left to the custodianship of religious organizations, to be administered according to that organization’s theological principles. (Like all the Bill of Rights provisions, there are limits. A church that performed, say, child sacrifice would be subject to prosecution, and, while a church could marry adults and minor children, the consummation of such a marriage would result in a charge of statutory rape.) Religious organizations whose doctrine and theology forbid same-sex marriage have nothing to fear. No “marriage Gestapo” will kick down their door and force the clergy to officiate at a gay / lesbian wedding at gunpoint. The “free exercise” clause of the First Amendment safeguards this prerogative.
Despite Chief Justice Moore’s protestations of ultimate deference to the Supreme Court – a publicly avowed intent to defy the Court under all circumstances would be a “George Wallace in the schoolhouse door” moment and would be dealt with similarly – Chief Justice Moore represents an atavistic and ultimately Augustinian attitude toward the relationship between the spiritual and the temporal, heavily weighted in favor of the former. Jesus said “Render unto Caesar the things that are Caesar’s and unto God the things that are God’s”. Chief Justice Moore, disagreeing with Jesus, apparently believes everything properly belongs to God and nothing properly belongs to Caesar. The extremity of this position conceals what, in a more modest and temperate form, has historically been a question that has preoccupied American government: the proper roles for the National and State governments in a federalist system. This was an issue at the 1787 constitutional convention in Philadelphia. It lay behind the desire among Jeffersonians / anti-Federalists for an explicitly written Bill of Rights, especially the 9th and 10th Amendments. It was an issue during all the States’ ratifying conventions. It was behind the divisions between Jeffersonians and Federalists as political parties were developing. It was the ground of the tempestuous election of 1800, which nearly led to civil war. It ultimately precipitated the actual Civil War, the deaths of 700,000 Americans (counting non-combatants), and the passage of the “Reconstruction Amendments” (13, 14, and 15). It was a live issue when conservatives, mainly though not exclusively Southerners, fulminated darkly about Brown v. Board of Education in 1954, and during the debate leading up to the passage of the Civil Rights Act of 1964 and the Voting Rights Act of 1965. We have not, to this day, solved the problem. Addressed it, yes; argued about it, yes; prophesied doom about it, yes. But never solved it. I doubt that we ever will. The question of the proper balance between Federal and State power is to constitutional doctrine what the mind-body problem is to metaphysics: intrinsically irresolvable.
So be of good cheer: Chief Justice Moore will not have the last word. For there probably is none.
James R. Cowles