David writes to ask how, from a “two kingdoms” perspective one should think about the question of whether the state should sanction homosexual marriage.

The moral law of God has been revealed in creation and re-stated, in the context of the national covenant with Israel. For the purposes of deciding deciding post-theocratic civil questions, the national covenant having been fulfilled by Christ and thus having  expired and having been abrogated, it is proper to appeal to the natural revelation of the moral law in creation. A second question is one of public policy that, in this instance, is to be decided by popular ballot (via the proposition system in California) and probably a series of appeals and court cases however the ballot measure comes out.

This post will address the first of these two questions, i.e. the principles on which this question should be decided. I am not commenting directly on the current ballot measure.

Until recently it has always been clear to the Christian church that same-sex (homosexual, now euphemistically referred to as “gay”) relations are contrary to God’s law. Some scholars however, e.g. John Boswell, have argued over the last twenty-five years that earlier periods in church history were more approving of homosexuality than once thought. Boswell’s claims have encountered significant resistance and there is good reason to doubt them.

A second problem is that, so far as I’ve read, in contrast to our own times, most of the ancient Christian writers were not, by contemporary standards, very explicit about homosexual behavior. Doubtless some will attempt to capitalize on the rhetorical restraint of earlier times as a sort of tacit approval of homosexuality. In fact, however, earlier Christian writers were reluctant to “spell out” or to discuss homosexuality explicitly because they regarded as so vile, sinful, and contrary to nature that they they tended simply to quote certain passages as self-evident, e.g. 1 Cor 6:9, as one finds in Polycarp’s Epistle to the Philippians (ch. 5) and to leave it at that.

Third, though 1 Cor 6:9 is quite explicit in the ESV: “ Do you not know that the unrighteous will not inherit the kingdom of God? Do not be deceived: neither the sexually immoral, nor idolaters, nor adulterers, nor men who practice homosexuality…” it’s not quite as clear in the older English translations. E.g. the AV seems, in our vulgar age, less pointed regarding homosexuality: “neither fornicators, nor idolaters, nor adulterers, nor effeminate, nor abusers of themselves with mankind….” Interestingly, Tyndale’s translation of this passage reads, in part, “neither they that do lechery with men” is less pointed than the ESV but more direct than the AV. Did the AV intentionally soften Tyndale’s language or was the language of the AV unequivocal in 1611? Thus, though the ESV is helpfully direct, the more restrained language of earlier periods has, in our time where subtlety in indirect speech is wasted, created some unintentional ambiguity and thus an opening for revisionists to argue that the tradition has been misunderstood.

Robert Gagnon has addressed the biblical teaching on homosexuality at length.

Thence to the question of the teaching of natural law regarding homosexuality. First, the most obvious point. Even if a conception occurs in a laboratory, it requires the contributions of a male and a female. The contributions of the same sex would produce no offspring. Only heterosexual relations can produce offspring. Biologically considered, it homosexuality is a dead end. In that respect, though biologists and other scientists can easily point us to examples of types of homosexuality among other species, among mammals, with respect to procreation, homosexuality is literally fruitless. With respect to the judgment of God on sin, however, it is not fruitless. Paul says as much in Rom 1:24-27:

Therefore God gave them up in the lusts of their hearts to impurity, to the dishonoring of their bodies among themselves, because they exchanged the truth about God for a lie and worshiped and served the creature rather than the Creator, who is blessed forever! Amen. For this reason God gave them up to dishonorable passions. For their women exchanged natural relations for those that are contrary to nature; and the men likewise gave up natural relations with women and were consumed with passion for one another, men committing shameless acts with men and receiving in themselves the due penalty for their error.

It is interesting, however, that Paul nowhere appeals to the Mosaic civil code to prescribe penalties for such behavior. Perhaps he assumed the view later summarized in the Institutes of the Corpus Iuris Civilis 4.18.4:

In criminal cases public prosecutions take place under various statutes, including the Lex Julia de adulteris, “…which punishes with death (gladio), not only those who violate the marriages of others, but also those who dare to commit acts of vile lust with [other] men (qui cim masculis nefandum libidinem exercere audent).”

Classical culture, however, was not unanimous about how it viewed homosexuality. This is an area of clear contrast between the biblical and pagan views of humanity (anthropology). Greco-Roman culture generally despised effeminate (hence the ambiguity of some of the older translations 1 Cor 6:9) behavior among men, and there were laws on the books restricting and punishing homosexuality but they had been enforced unevenly. The existence of these laws reflect the natural knowledge of the law inscribed on the human conscience. The classical pagan disgust at the confusion of gender roles implied in extreme effeminacy—here we should be careful not to set, e.g. John Wayne as the standard of masculinity—also reflects the creational law against homosexuality. After Constantine, The language and intent of Roman law became progressively clearer concerning homosexuality as a civil matter but appeals to nature and natural revelation occur repeatedly in the Justinian code.

Late modernity has been nothing if not total war against creational boundaries in the guise of criticism against all artificial restrictions. It’s true that some laws are mere social conventions and can be changed. It’s always fun to look at old laws to see how “antiquated” and irrelevant they seem. For example, there may still be vagrancy laws on the books that require a gentleman to carry a certain amount of cash with him, as proof that he has not homeless. Today, in an age of credit and debit cards, the enforcement of such a law would be arguably unjust. The same cannot be said for the civil enforcement of basic marriage laws and restrictions on sexual behavior. These laws are not rooted in a temporary social convention but in the nature of things.

It is the creational (and biblical) office of the magistrate to assert and protect creational/natural boundaries by promoting civil peace and justice. The magistrate does so by preventing and punishing crimes against persons, nature, and the state. In the context of the Greco-Roman world, the force of Rom 13:4, “he does not bear the sword in vain” was unmistakable. The noun “sword” (μαχαιραν) was a metonymy for the function of the sword in decapitating those sentenced to death. It is the creational function of the state to preserve order and require humans to live within their creational boundaries.

In this respect, it is important for Christians to understand that the civil kingdom is not a covenant of grace but a covenant of works: do this and live. It is not the vocation of the civil magistrate to dispense undeserved favor. The magistrate may show mercy or restraint or clemency but not grace. Mercy is not giving to someone what he deserves. No member of civil society has a “right” to mercy or a “right” to do as he will, without regard to the rest of that society. Because the civil kingdom is a covenant of works, the magistrate is also restrained by the natural law. The magistrate is restrained from telling a citizen how me may or must approach God or how he must think. In the civil kingdom a citizen has certain natural, inalienable rights. The magistrate violates natural law when he deprives a citizen of his life or his natural liberty (freedom from restraint) unjustly. The magistrate’s function is not to create a (Marxist) utopia but to preserve peace in order that citizens may fulfill their vocations before God and man.

One of the areas in which the magistrate has a legitimate interest is the regulation of marriage and the constitution of the family. The family is constituted by marriage as a male and a female and whatever children may issue from that marriage or be adopted into it. It is a creational institution. The state does not create families or marriages but it recognizes and governs them. In the nature of things, the definition of fundamental social institutions such as the family or marriage, which is the beginning of the family, the social and civil recognition of the covenant between persons to live together as a natural family. These natural, creational institutions are fundamental to any society. If marriages and families are defined in homosexual terms, then society itself is redefined and its relations to nature are radically re-defined. This is why the magistrate has an interest in marriage and families generally. If nature or creational boundaries are no longer normative for marriage and family then what norms are there? All social relations devolve to mere convention (will), become arbitrary, and constantly re-defined. When nature is recognized and obeyed, bestiality is illegal because it is contrary to nature. If bestiality is defined as mere convention then it can only be prohibited on the basis of will or convention or in the interests of the animals. What if someone decides or gives plausible arguments that his animal has given consent? What then of pedophilia? Apart from the constraints of nature and natural law, why exactly should civil society forbid it? This is not a “slippery slope” (if this happens, then that will happen) argument. I am merely pointing out questions that already exist (there are advocates of both pedophila and bestiality) and the necessary consequence of denying the existence of nature and natural boundaries. The magistrate has a right and a duty to enforce marriage and divorce laws in order to enforce natural, creational boundaries in the same way he has a duty to protect a society from theft and fraud.

To anticipate an objection, this is not a theocratic argument. It is not the magistrate’s duty to police every sort of violation of natural law and sin. For example, no one but theocrats want the state enforcing obedience to the first table of the law. The magistrate’s natural sphere of concern and authority is in the second table. Civil authorities have a right and duty to arrange a calendar (e.g. public holidays) of working and resting according to the creational pattern, to prevent and punish theft, to prevent and punish murder, and to regulate public sexual morality. Marriage is a form of regulation of sexual morality.

It’s a binary choice. Either the civil authority has a right and interest in enforcing natural law relative to marriage and sexual morality or he does not. Even the advocates of homosexual marriage generally favor some form of civil regulation of marriage and sexual expression. For example, they generally admit that the state should not permit adults to marry children (because children cannot grant consent). They generally concede that the the state should not permit humans to “marry” or have sexual relations with non-human creatures, if only on the grounds that the latter constitutes cruelty to animals or because animals cannot give consent.

Thus, this isn’t really a discussion about whether the state should regulate sexual behavior or even marriage but to what extent and on what grounds. I argue that the state should regulate marriage on the basis of natural, creational law and that those who advocate pushing back the boundaries of marriage to include homosexual marriage are advocating the recognition of the violation of natural, creational law recognized in the West by pagans and Christians for two thousand years.

Thus, the argument against homosexual marriage is not a “theocratic” argument, but an argument from the nature of things grounded in natural revelation, in the most fundamental observations about how human beings relate to one another, about what it is to be human, about what it is to be a civil society, about what a family is, and ultimately, that there really is such a thing as nature or creation itself that limits the choices of sovereign, ostensibly autonomous late modern humans.

Update 9 Dec 08, Mollie Hemmingway responds to a recent Newsweek story on a related topic.

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