Judicial Activision Jumps into the Gap

Unless you live under a rock, you have heard about the federal judge in California who declared it unconstitutional to restrict marriage to a man and a woman.  This was in response to a challenge to Prop 8 which defined marriage between a man and a woman alone in California.  Of course it will end up in the appeals court and then finally the Supreme Court.  But no matter how it turns out, the process is a bad one.  Like abortion, it did not go through legislative change by state but could happen by fiat through activist judges who intervene to speed up the process much like the court system did 37 years ago.  This is bad news.  It releases elected representatives and the President from having to take a position on this -- it is out of their hands and does not matter what they think will be the excuse.  It means that America will be divided by this issue in a way forced upon the public the way the abortion ruling divided us when judges intervened to define law.  But I digress...

Charles Krauthammer, conservative political columnist and commentator, noted that the handwriting is on the wall.  Ten years ago public opinion was 62% against gay marriage in California and now about 52%.  We have seen change in libertarian Vermont and liberal Massachusetts and solidly middle American Iowa.  Whether or not the legislative tack or activist judicial ruling, the court of public opinion is moving toward accepting same sex marriage.  That is a given.  And it will put great pressure upon those churches (like the Roman Catholic and the Lutheran Church Missouri Synod) who will stand outside the mainstream of public opinion not only with respect to abortion but also same sex marriage.

It may be less of a challenge for Rome whose position is more insular since the papal pronouncement will define doctrine and curb the press for change there.  Those church bodies which have some kind of democratic structure will find it harder.  We used to joke that the will of God could only be overturned by a 2/3 majority vote.  It is not so funny now.

In addition, we have seen evidence from Evangelicals and others that the younger folks just coming into teenage years and young adulthood are much more open to same sex marriage than those in their fifties on up.  So perhaps in a generation or so we may find a challenge to established doctrinal positions such as marriage -- even in stodgy old churches like Missouri.

The argument is between natural law and human definition and in this sense sparks a great future of conflict as natural law seems to be going the way of the dinosaur.  I am not a fan of Cardinal Mahoney of LA but in an uncharacteristically clear and strong statement he frames the issue well:


Cardinal Mahoney:

There is only one issue before each of us Californians: Is Marriage of Divine or of Human Origin?

Judge Walker pays no attention to this fundamental issue, and relies solely upon how Prop 8 made certain members of society "feel" about themselves.

Those of us who supported Prop 8 and worked for its passage did so for one reason: We truly believe that Marriage was instituted by God for the specific purpose of carrying out God's plan for the world and human society. Period.

Every single religious faith community in our known history has held this belief since recorded history began. Every indigenous group discovered down through history also understood this belief about marriage, and carried out cultural and religious practices to sustain that belief. Marriage is of divine origin, and that belief is embedded deeply into the heart and spirit of human beings--also described as the natural law for the human family.

Judge Walker assumes that the institution of marriage is of human and civil origin, and therefore, that "marriage" can mean anything any person wishes to ascribe to the institution. Wrong.

The union of a man and of a woman in a life-long loving and caring relationship is of divine origin. No human nor civil power can decree or declare otherwise.

It is too bad that Judge Walker chose to listen to anguished voices about their perception of marriage rather than plumb the depths of the origin of this divinely inspired institution.

For many of us, we will continue to believe that God is the origin of marriage, and we will follow God's constant revelation to that effect.

So we will wait and see and, in the meantime, we have our work cut out for us...