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Panel Talks sponsored by The Concordia Speakers Series& The Two Kingdoms Network CUNE,Same-Sex Marriage,and the Supreme Court Obergefell Case These slides were used in a Panel Talk conducted on Oct. 6, 2015, at Concordia University, Nebraska. They are available here for others to use, edit, or modify as needed. The contents are for discussion purposes and do not necessarily represent the views of CUNE.

Our Limited Aims This Evening: Set out several key SSM issuesExamine a few selected topics with the panel Hear comments, questions, and concerns from the audience Sustain a Biblically informed approach to these complex issues with regard for Christ’s compassion and the Scriptures’ contents. Our limited time will not permit us to exhaust the topic. Please use this Panel Talk to extend your own consideration of this and other culture shifts.

Obergefell v. Hodges, June 26, 2015 The Ruling: In a 5-4 decision with the majority opinion written by Justice Kennedy, the Supreme Court reversed the judgment of the federal Sixth Circuit Court which had upheld the constitutionality of Minnesota’s law against same-sex marriage: The Supreme Court ruled that the Fourteenth Amendment requires a state to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage is lawfully licensed and performed out-of-state.

The Background In the 2013 case, United States v. Windsor, the Supreme Court ruled unconstitutional that section of the Defense of Marriage Act (DOMA, made federal law in 1996) which restricted marriage to heterosexual unions only. In a 5-4 decision, the court’s Windsor opinion said the heterosexual-only section of DOMA violates the Fifth Amendment due process clause, holding Edith Windsor that marriages, where legally licensed, must be recognized across state and international lines .

The Obergefell Case After the Windsor ruling, James Obergefell and John Arthur, a same-sex couple in Ohio, married in Maryland to obtain legal recognition of their relationship. After learning that their state of residence, Ohio, would not recognize their marriage, they filed a lawsuit alleging that the James Obergefell state discriminated against same-sex couples who have married lawfully out-of-state. Because one partner, Arthur, was terminally ill with ALS, they wanted the Ohio Registrar to identify the other partner, Obergefell, as his surviving spouse on his death certificate, based on their marriage in Maryland. The state attorney general's office announced plans to defend Ohio's same-sex marriage ban and not issue such licenses under the state health dept. and its director, Richard Hodges—thus Obergefell v. Hodges .

The Process Several similar same-sex marriage cases were moving through various state and federal courts and appeal processes. When four federal Circuit Courts of Appeal ruled that state bans against same-sex marriage were unconstitutional and one Court of Appeal found such bans constitutional, this split all but compelled the Supreme Court to settle the differences in the lower courts. The Supreme Court then selected the Obergefell suit in Ohio as a test case and adjudicated it such as to overrule the Appeals Court ruling that had upheld the Minnesota state ban on same-sex marriage.

2. Does the 14th Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state? The Constitutional Issue The Supreme Court examined the several cases and determined to narrow its constitutional review to two questions related to the 14 th Amendment’s clauses for due process and for equal protection under law: 1. Does the 14th Amendment require a state to license a marriage between two people of the same sex ? The majority opinion: yes The majority opinion: yes

Marriage is a fundamental right. State bans against same-sex marriage violate the 14 th Amendment equal protection clause. The equality under law and due process of law assured by the equal protection clause and the due p rocess clause are interdependent within the 14th Amendment. Because the liberty and equality of same-sex couples is significantly burdened by state bans against same-sex marriage, the court struck down same-sex marriage bans for violating both clauses . The Constitutional Rationale in the Majority Opinion:

The Court lists four reasons why the fundamental right to marry applies to same-sex couples: “The right to personal choice regarding marriage is inherent in the concept of individual autonomy.“ “The right to marry is fundamental because it supports a two-person union unlike any other in its importance to the committed individuals." The fundamental right to marry "safeguards children and families and thus draws meaning from related rights of childrearing, procreation, and education"; e.g., since same-sex couples now have children and families, they are deserving of this safeguard—though the right to marry in the United States has never been conditioned on procreation. “Marriage is a keystone of our social order," and "[t]here is no difference between same- and opposite-sex couples with respect to this principle"; consequently, preventing same-sex couples from marrying puts them at odds with society, denies them countless legal benefits of marriage, and introduces instability into their relationships for no justifiable reason.

The Majority Opinion: In four areas, Kennedy’s language has drawn attention regarding its jurisprudence: “Sexual orientation is both a normal expression of human sexuality and immutable .” ■ “Immutable” is a weighted term in both law and in psychology. Rights in the 14th Amendment's Due Process Clause "extend to certain personal choices central to individual dignity and autonomy , including intimate choices that define personal identity and beliefs .” ■ Identity, intimacy, autonomy, and dignity belong to religion, depth psychology, and philosophy and may not be the province of constitutional law. “The annals of human history reveal the transcendent importance of marriage .... Marriage is sacred to those who live by their religions and offers unique fulfillment to those who find meaning in the secular realm . Its dynamic allows two people to find a life that could not be found alone , for a marriage becomes greater than just the two persons. Rising from the most basic human needs , marriage is essential to our most profound hopes and aspirations .” ■ The nature of marriage may not be the province of constitutional law.

“Those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned. The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered.” ■ The majority opinion recognizes “advocate” and “teach” but does not include the “free exercise” clause of the 1st Amendment. Kennedy’s Language, cont.

Roberts’ Dissent (generally representative of other dissent) And a State’s decision to maintain the meaning of marriage that has persisted in every culture throughout human history can hardly be called irrational. In short, our Constitution does not enact any one theory of marriage . The decision creates serious questions about religious liberty. Many good and decent people oppose same-sex marriage as a tenet of faith, and their freedom to exercise religion is—unlike the right [of marriage] imagined by the majority—actually spelled out in the Constitution. Today’s decision rests on nothing more than the majority’s own conviction that same-sex couples should be allowed to marry because they want to, and that “it would disparage their choices and diminish their personhood to deny them this right.” Whatever force that belief may have as a matter of moral philosophy, it has no basis in the Constitution. Although the majority randomly inserts the adjective “two” in various places, it offers no reason at all why the two-person element of the core definition of marriage may be preserved while the man-woman element may not. Indeed, from the standpoint of history and tradition, a leap from opposite-sex marriage to same-sex marriage is much greater than one from a two-person union to plural unions.

One Way to Frame the Larger Concern: Male/female marriage as millennia of universal practice and tradition across all civilizations without deviation even within this trans-cultural diversity, sustaining a foundation for all cultures including liberal democracy The prerogative of a liberal democracy to re-define or set aside tradition and chart its own future, informed but not constrained by the past, and drafting new possibilities for an always changing world How does our Lutheran two-kingdoms perspective inform both our historically orthodox Biblical practice and our participation in the Enlightenment’s approach to democracy?

Another Way to Frame the Larger Concern: This is a source-and-norm issue. The Bible is no longer a normative document for American culture. Regarding accountability and norms among us, two questions pertain: How would you know which claim is a norm and what exactly it is? On what authority would you make that claim? Three possible sources: I create the norms I use. If I didn’t, they would not exist. My culture—through some interactive process of contingency, randomness, and agency—creates the norms I and others use. I am the product of my culture. These norms exist and proceed from some source outside myself and my culture.

Obergefell and SSM : The Complex Parts and Pieces in no special order God’s two kingdoms: distinct but not compartmentalized the biology: genetics, epigenetics, neurology, and brain organization the church’s credibility and public trust: Westboro Baptist, sexual abuse of children, divorce, denominations, etc. protracted civil dispute: Dred Scott; Brown v. Board of Education; Roe v. Wade; Hobby Lobby; etc. religious liberty: advocate and teach faith—how about exercise? religious exception: the church as counter-cultural—or the church as discounted? language and terms—how words are selected and used in controversies, and what they mean and do not mean: ”homosexual”? “gay and lesbian”? judgment: our proper and our improper practice of judging people and ideas, beginning with ourselves emotions and logic: the excessive roles of emotivism and of logical positivism respect and compassion: for all descendants of Adam & Eve and especially for the neighbor who is a stranger

Obergefell and SSM: The Complex Parts and Pieces in no special order but with a few featured God’s two kingdoms: distinct but not compartmentalized the biology: genetics, epigenetics, neurology, and brain organization the church’s credibility and public trust: Westboro Baptist, sexual abuse of children, divorce, denominations, etc. protracted civil dispute: Dred Scott; Brown v. Board of Education; Roe v. Wade; Hobby Lobby; etc. religious liberty: advocate, teach—and exercise?—faith religious exception: the church as different, the church as discounted language and terms: how words are selected and used in controversies, and what they mean and do not mean—“homosexual”? “gay and lesbian”? judgment: our proper and our improper practice of judging people and ideas, beginning with ourselves emotions and logic: the excessive roles of emotivism and of logical positivism respect and compassion: for all descendants of Adam & Eve and especially for the neighbor who is a stranger

I wrote to you in my letter not to associate with sexually immoral people—not at all meaning the sexually immoral of this world…since then you would need to go out of the world…. For what have I to do with judging outsiders? Is it not those inside the church whom you are to judge? 1 Cor 5:9ff Walk in wisdom toward outsiders, making the best use of the time.  Let your speech always be gracious, seasoned with salt, so that you may know how you ought to answer each person. Col 3:5-6 Keep your conduct among the Gentiles honorable, so that when they speak against you as evildoers, they may see your good deeds and glorify God on the day of visitation…. Show proper respect to everyone; love the family of believers; fear God; and honor the emperor. 1 Pet 2:12, 17 For God so loved the world that…. Jn 3:16-17 Do not love the world or anything in the world. If anyone loves the world, love for the Father  is not in them.  For everything in the world—the lust of the flesh, the lust of the eyes, and the pride of life—comes not from the Father but from the world. 1 Jn 2:15-16 Do not be yoked together with unbelievers. For what do righteousness and wickedness have in common? Or what fellowship can light have with darkness?  What harmony is there between Christ and Belial? Or what does a believer have in common with an unbeliever? 2 Cor 6:14-15 “Do not think that I have come to bring peace to the earth. I have not come to bring peace, but a sword.  For I have come to set a man against his father, and a daughter against her mother, and a daughter-in-law against her mother-in-law.  And a person’s enemies will be those of his own household. Mt 10:34-36 Sustaining the Two-Kingdoms Tension in the Whole Counsel of God

Matters for our attention as a Christian and Lutheran academic community: Concern for the well-being and dignity of traditional, gay, and lesbian Christians and non-Christians—that is, all who are created in the image of God. Attention to civil liberties including religious liberty, civil rights, free speech, free exercise of religion, and participation in the public square (as opposed to being excluded, marginalized, or “ exceptionalized ”).Potential campus cases of SSM and gender non-conformity with members of our community including faculty and students: Employees or ministers of the Gospel? Access to federal financial aid for students? Litigation and law suits: health insurance, admissions, housing? How do I disagree (Law) with my friend in a world where Law ends the discussion? Developing left-hand kingdom strategies that sustain the world God so loves and keep sin and chaos in check; and right-hand kingdom strategies that advance the Gospel, proclaiming and practicing the love of Christ.

A SSM posture toward friends, relatives, and neighborsthat is both caring and biblically realistic Helping them with the source-and-norm question. Helping theme distinguish a principled source-and-norm position (whether Christian, Kantian, Muslim, Utilitarian, etc.) from sheer emotivism.Helping them identify their own absolutes, hypergoods , and non-negotiables and their sources for these .Helping them distinguish historically established exegetical principles from, “It’s all just matter of interpretation .” Helping them clarify what is and is not the Bible’s documented model and paradigm for marriage. Helping them consider the possible implications, pro and con, of abandoning a historical, universal, cross-cultural tradition, e.g., unintended consequences. Helping them remain open and listening to alternate views from others such as Natural Law Aristotelians, orthodox Jews, historically biblical Christians, and conventional Muslims .

JUDGMENT AS… The Close of the Age : eschatological judgment—“He will come again in glory to judge both the living and the dead.” (2nd article of the Creed, the season of Advent, Mt. 25, etc.) Blame-and-Shame C ondemnation : toxic judgmentalism; Paul clearly teaches in Rom. 14 why the church is not to do this. Spiritual Assessment : assisting in faith development and spiritual formation; exercising informed judgment for the well-being of others, a theme plainly established in Scripture, e.g., 1 Cor 2 &3, 1 Cor. 12:10, 1 John 4: 1ff, Hebr. 5:11-14, 1 Cor. 5:1ff.

CHRISTIAN LIBERTY / ENLIGHTENMENT LIBERTY   Christian Liberty: Frees us from sin, the Law, death, and the power of the devil Frees us to serve our neighbor rather than self   Enlightenment Liberty : Frees us from the rule of tyrants and tradition Frees us to advance self-interest according to law and reason   Which of these do we tend to emphasize in our instruction? Which of these do our students operate with? Can we teach both? Do we? Is this a two-kingdoms distinction?

A Secular Prerogative or Principled Pluralism?  The current secular assumption is that only nonreligious ideas should inform civil discourse and the public square, and uses such themes as “wall of separation,” non-discrimination, and civil rights that includes religion as personal and private. History shows that religion in civic affairs inevitably leads to conflict.  Principled pluralism responds that this view results in limiting religion to the church, synagogue, and mosque but will ultimately relegate all convictions, secular and religious, to merely personal and private concerns – an incoherent and irrational outcome for all. Instead, the pluralism of all stakeholders creates those checks and balances that prevent both secular state-ism (Nazi Germany, the Soviet Union) and toxic religion (the Crusades, radical Islam). See Free to Serve: Protecting the Religious Freedom of Faith-Based Organizations , Monsma and Carlson- Theis (Brazos Press, 2015)

Over the centuries, the church has understood the institution of marriage in, broadly, three ways: As a civil institution initiated by God in Eden while now regulated by local custom and family practices (and later by assorted governing authorities) As a sacrament , that is, a sacred or “set aside” practice established by God for humanity that, through church practice, keeps people somehow connected to the things of God As a covenant that reflects the Biblical series and pattern of covenants or mutual promises, especially between Christ and the church (Eph. 5:21ff)

Three Views in Circulation on SSM:  SSM cannot be located in any Biblical paradigm or pattern. The only textual marriage pattern that exists in and persists across the Scriptures is male-female marriage, a pattern in which any Christian—gay, lesbian, or traditional—is freed by the Gospel to participate or not participate. Every Christian—gay, lesbian, and traditional—is burdened with temporal conditions that neither diminish or enlarge their identity in Christ, and none need be defined or ruled by only the sexual dimension of their identity. The Gospel makes us new creations now characterized by promise and committed love rather than by law or by Biblically conventional practices. Just as the early church—all Jews—could induct the less-than-chosen Gentiles into fellowship (Acts 1-15, Gal. 3:28), so the church today can sustain alternate relationships in marriage such as SSM that are characterized by promise and commitment. Parallel to the Laws given to Moses that made certain concessions for divorce (Dt. 24, Mt. 19, Mk. 10 ), and to the church making certain concessions for relations between Gentiles and Jews (Acts 15), the church can understand and minister with SSM as concession to another aspect of our post-Eden human condition . What exegetical strengths and weaknesses do these views contain ?

So what is the relationship of Christ with culture? Christ conflicts with cultureChrist conforms to cultureChrist transcends culture Christ in tension with cultureChrist transforms culture From one of our profs: “ Ah! These views help me understand now why I hear what I hear from students about religion and… [literature] [science] [politics ].”

Three Culture Shift Scenariosfor the Lutheran University

Christian Higher Ed and the SSM/Gender Culture Shift Scenario 1 Over the next five to ten years, cases that are pending, ambiguous, accommodating, and unresolved at such colleges as Gordon, Hope, Baylor, and Belmont may prompt regulators and advocacy groups to locate and cite traditional Christian campuses for non-compliance or anti-compliance policy regarding marriage and gender practice. This attention involves the cited college in protracted compliance negotiation and court proceedings.In this scenario, the university would do well to craft a deliberate position and policy, edit its terminology carefully, and design for coherence and consistency with its theology.

Christian Higher Ed and the SSM/Gender Culture Shift Scenario 2 Our society will continue to include a large number of traditional religious institutions—evangelical, Catholic, Jewish, Muslim—which will not accommodate novel and ambiguous social norms. Within the next one to three years, a rapid succession of regulatory and court cases regarding religious institutions, same-sex marriage, the ACA issues, and religious freedom may expediently create a “zone of religious exception” (cf. the ministerial exception precedent in the Hosanna-Tabor case). The “zone” will include colleges, charities, and social service ministries that clearly demonstrate a historical tradition which rejects recent regulation contrary to their traditions. This exception will become part of the accepted social and religious diversity and become less “exceptional.” In this scenario, the university can afford to wait and avoid becoming one of the early test cases.

Christian Higher Ed and the SSM/Gender Culture Shift Scenario 3 The church and her institutions will experience a combination of the first two scenarios. Some areas of exception and compromise, such as ACA regulations and birth control, will get worked out early on. Perhaps the current Planned Parenthood situation accelerates this process. Other areas go through test cases, court decisions, and appeals. Federal financial aid for church schools may be an example. In this scenario, the university monitors closely the regulatory and legal trends and develops preemptive positions and strategies as a hedge against possible interdiction.