Monday, August 2

Thoughtful Thursday: Oil And Water And Marriage Equality


I'd like to take a moment and introduce a new writer for us - Jim Cowles. Jim has an eclectic background (read his bio at the end) to say the least and will be our spiritual skeptic. Keeping us honest in our wonderings about all things and challenging our thinking. He attended the same University I did, although we were at least a decade apart! Really, I have no idea how we met--but we did! Generally, I find him to be insightful, challenging, and humorous. I hope you enjoy him!

The national debate over LGBTQ marriage / marriage equality makes me increasingly uneasy about the ability of religion -- especially monotheistic religion, and most especially conservative monotheistic religion -- and the US Constitution to continue to cohabitate in the same society. As religious and political beliefs continue to become more and more polarized, what is increasingly lost sight of is that, in a free, latitudinarian, constitutionally governed society, it is imperative that religion and government accommodate each other on a level playing field, in which neither dominates the other, but each is allowed to exist and to exercise its prerogatives freely within their respective spheres of concern.

Within the context of the marriage-equality debate, this means that equal weight must be given to both the "establishment" and "free exercise" clauses of the First Amendment. It also means that the "due process" clause of the 5th Amendment and the "equal protection" clause of the 14th mandate the government's response. The "establishment" clause means that the government is not, and has no constitutional warrant to be, in the religion business. As far as the government is concerned, the US Constitution mandates that the government consider marriage as merely one type of contract among others, e.g., mortgage, new-car loan, cellphone-service contract, etc., etc. etc. Insofar as marriage is a legal contract freely entered into between two competent parties, as far as the government is concerned, the contract known as "marriage" has no more theological / religious / sacramental dimension than would be possessed by, say, a contract with T-Mobile to provide cellphone service. From the government's perspective, all marriages -- both of heterosexual people and of LGBTQ people -- are civil agreements. This purely secular -- not to say "religion hostile", merely "a-religious" -- perspective has two immediate consequences: (1) the government has no constitutional warrant for considering some marriages "real" or "valid" and giving them any privileged status based on purely theological criteria; (2) nor has the government any constitutional warrant for restricting marriage to heterosexual couples. The government would not deny otherwise-competent LGBTQ people the right to enter into a cellphone contract with Verizon, merely on the basis of sexual orientation. Likewise marriage. Denying LGBTQ couples the right to a civil-contract marriage would facially violate the "due process" clause of the 5th Amendment and the "equal protection" clause of the 14th, just as much as denying LGBTQ people the right to mortgage and cellphone contracts on the basis of sexual orientation. There is no constitutional justification for either prohibition.

By the same token, religious communities have a corresponding and co-equal right to deny LGBTQ couples sacramental validation of their relationships. Such a denial by a religious community of sacramental recognition of such marriages has no effect whatsoever on the legal standing of those relationships. Furthermore, because of the "free exercise" clause, the government is constitutionally powerless to coerce any religious community into recognizing the religious validity of an LGBTQ marriage, if that community's theological doctrine mandates otherwise. Just as "no man can put asunder what God has joined together", so also no government can force together that which the community's teachings dictate must be separate. Marriage-as-legal-contract is over here, marriage-as-religious-sacrament is over there, and "never the twain shall meet".

ImageThe problem is that, in general, the more conservative a religious believer is, the less likely is this distinction to be understood -- or, even if understood, agreed with. In retrospect, this is understandable, arguably inevitable, given that, for most of its history, the United States was a predominantly Protestant country. Moreover, the particular variety of Protestantism that has been historically dominant is Reformed Protestantism. The theological and doctrinal DNA of Reformed Protestantism derived from St. Augustine -- Martin Luther was an Augustinian monk -- and consequently partakes of Augustine's deep pessimism about human reason and human government, in fact, about the human condition generally.

Image(Martin Luther came by his excoriation of "the whore, Reason" honestly!) Intellectually, this meant that Augustine emphasized Divine enlightenment over human rationality, and also, especially in his great work The City of God, the ideal of the spiritual / religious order dominating that of the secular / political. By contrast, the tradition of ordered liberty set forth in the US Constitution is a product, arguably the supreme product, of the European Enlightenment, and its emphasis on the subordination of religion to reason in the interest of tolerance and the   avoidance of religious war, and its optimism about the capacities and potentialities of the human intellect. (Even today, the very title of Immanuel Kant's 1793 work Religion within the Limits of Reason Alone is a concise summarization of the Enlightenment attitude toward religion.) American attitudes about religion were shaped by the pessimism of Augustinian, and, later, Reformed, Protestantism, but the Framers of the Constitution, and the Document they produced, were no less shaped by the optimism of the Enlightenment.

So the oil of Augustinian / Reformed pessimism meets the water of Enlightenment optimism, and the ground on which they meet is the American Constitution, which makes room for both. Neither is wholly comfortable with the other, yet each is an essential part of the psychological, cultural, and political temper of the American experience.


James Cowles

(c) 2013, James Cowles, All Rights Reserved


JAMES COWLES is a weekly contributing author. Married to Diane for 29 years, going on 30 (as of 18 Aug ’14), no kids.  I retired in 2010 after 30+ years as, at various times, an engineer, software developer, and software development manager with the Boeing Co.  Diane works as a librarian at the Beacon Hill Branch of the Seattle Public Library system.  I have a master’s in math from Wichita State Univ, a master’s in physics as a Woodrow Wilson Fellow from Tulane, a master’s in English lit from Tufts by way of Harvard and, as a Council of Europe Fellow, Oxford (Exeter College … same Oxford college as JRR Tolkien), and a master’s in theology (MAPS) from Seattle Univ.  My main current interest is constitutional history and theories of constitutional interpretation (my area of specialization at Tufts / Harvard / Oxford  was postmodernist / deconstructionist interpretation theory).  I’m currently auditing a class in advanced constitutional law at the UW law school, and plan to audit another class on the First Amendment next quarter, plus take a Coursera non-credit course in “con law” from one of my heroes Prof. Akhil Amar at Yale Law early in ’14.  I am a “born-again” skeptic / atheist / agnostic (depending on what I ate for breakfast on any given morning) and equally “born-again” progressive who believes that anchorman Will McAvoy’s rant against the Tea Party as the “American Taliban” in the first episode of “The Newsroom” — which, if you don’t watch, you should — was far too charitable to the Tea Party and an insult to the Taliban, who are much more enlightened than, e.g., Rick Santorum and Michele Bachmann.  I believe that the “minimal state” as advocated in Robert Nozick’s “Anarchy, State, and Utopia” is a fine goal — but only for “minimal people”. I also believe the greatest threat to America’s tradition of ordered liberty under the US Constitution is the Christian fascism of the religious right, and the 2nd greatest danger to that tradition is the unintentional, in fact, almost knee-jerk, nurturing of Christian fascism on the part of progressives in the name of “tolerance” (see Sam Harris’s remarks on same early in “The End of Faith”). The latter group, especially, would do well to read John Milton’s great defense of freedom of speech and press, “Areopagitica”, with careful attention to what Milton says about the moral limits of tolerance.


  • Crisp, clear, and on point. Thanks, James and Terry.

    I especially appreciated the reference to Milton’s Areopagitica, which is available in fulltext across the internet. Milton’s concerns in that pamphlet are relevant to the present time not only in terms of a balance of power between religion and state (Milton was aligned with his government’s religion but not with its overreach) but also in terms of how state censorship restricts the knowledgemaking process and undermines writers and thinkers everywhere the state has authority. Given the ongoing revelations of surveillance in the present day, these historical patterns (17th C, pre-Revolutionary Stamp Act, surveillance of peace movements, academics, journalists, foreigners, and “dissidents”) is something Americans would definitely benefit from.

    Thanks again!

  • Wow! Sure James is not German? Those sentences went on forever, took all sorts of turns and twists and challenged with a bunch of words I have not heard in a long time. Nice brain work-out! I am a little concerned about all of his degrees (maybe jealous is a better word). It will be fun to read what this skeptic has to say!

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