Three disclaimers before I dive in: 1) This blog has always been my own thinking and in no way represents the positions or policies of any of the institutions I’ve served; 2) I am not arguing for or against same-sex marriage from religious grounds; 3) my attempts here are simply to explore the political and ethical responses Christian Universities may need to consider if the Supreme Court expands same-sex marriage rights nationally.
Sometime in the next three weeks, the Supreme Court will hand down a key decision on marriage in America. There are actually four separate cases being considered, organized around two questions:
Issue: 1) Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex? 2) Does the Fourteenth 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? (http://www.scotusblog.com/case-files/cases/obergefell-v-hodges/)
The first question involves the Michigan definition of marriage as between one man and one woman. The plaintiffs argue that this violates the 14th amendment rights of equal treatment because they are gay. The second question stems from Tennessee’s position that they wouldn’t recognize same-sex marriages authorized in other states.
I listened to the oral arguments in April (available here and here). None of the attorneys arguing made an airtight case and faced significant questioning and some skepticism from the Justices, especially on issue one. It seems to me that the Justices correctly wrestled with what I’d call the “legacy question” — can the court simply adopt a new definition of marriage when, as many argued, such an idea as same-sex marriage wasn’t recognized by any governmental authority prior to this century. They rejected attempts to tie marriage to procreation or to link same-sex rights to civil rights 50 years earlier. But it seemed like the legacy issue remained — they did not want to be known as the Court that changed marriage forever.
The second question, the one about recognition, seemed easier for the Justices to see their way through. There is a long history of jurisprudence on recognizing state sovereignty as it affects those who move from one state to another. Key questions to me involved how states accept varying definitions of the age of marriage and don’t differentiate just because the woman was “underage” according to the new state. Since 1823, the Court has consistently held the right of free movement and limited the ability of states to supersede the rights of their neighboring states.
This is a long introduction, but it’s important to set the stage for what I think is going to happen. After hearing the arguments, it suddenly dawned on me that the Court’s most pragmatic solution is to side with Michigan on question one (affirming the vote of the people) while siding with the plaintiffs in Tennessee (requiring states to recognize same-sex marriages from other states). The practical impact of this would be to enable same-sex couples to marry in affirming states and then move back to their home state to live. In essence, the second question nullifies the first until such time that states with same-sex marriage bans vote to overturn them (which, if polling data is correct, is likely to happen within a couple of elections).
So if I’m right (and I’m pretty sure about question two), Christian Universities will find themselves struggling to know how to respond.
One option is to claim a religious exemption by demonstrating that support of one-man, one-woman marriage is central to their operation. I’m not sure that will survive legal challenge, especially as many Christian institutions have made space for divorce and remarriage. Besides, this is an argument about employees more than about students. Making the “essential” argument would be difficult, force the institution into dogmatic language inconsistent with its key ethos, and open the door to claims of hypocrisy or homophobia.
If Christian Universities take the chance to seriously engage the question, what are the issues that need attention?
1. I think the key issue is to draw a bright line around marriage. When it comes to student behavior, there should be clear proscriptions against premarital sex. There is no need to separate same-sex behavior as a special class of activity. If a student is married, sexual behavior is permitted — otherwise not. Yes, this raises the possibility that a same-sex couple attending the university is engaging in sexual behavior but we can allow state law to take precedence in this matter. On a pragmatic note, with the number of commuters and non-traditional students in our institutions, it’s impossible to even know who is in a same-sex marriage. (Unless we were to make that a question on the admission application, which would face significant legal challenge.)
2. Students will want an institutional space for conversations about sexual orientation. One of the interesting developments over the weekend involved the Madeleine L’Engle’s family foundation giving $5,000 to OneWheaton, an unofficial group of current and former Wheaton students who are gay or gay allied. The money will be used to offset costs of a conference this fall. Of particular note, however, is that the gift was unsolicited. This was an attempt by an outside group (well connected within evangelical circles) to have an impact. In his story for Religion News Service, Jonathan Merritt quoted L’Engle’s grandaughter who chairs the foundation:
My grandmother had a long and deep relationship with Wheaton College and its English Department, and she was enriched by some of the vigorous debates she had with faculty and students there. I believe that the kinds of conversations OneWheaton is seeking to have reflect where she would be if she were still here.
I fully expect other groups to follow the L’Engle foundation’s lead in years to come. Such action will strengthen the voice of the One college groups. Rather than see these as competing yet unofficial voices within the institution, Christian Universities will be well suited to find ways of making them official parts of their student organization universe.
This will lead to a third issue.
3. Christian Universities will need to affirm that there are legitimate differences of opinion within the Christians making up their community. This includes faculty, staff, students, trustees, parents, and alumni. This doesn’t mean that Christian Universities have to abandon their commitment to biblical authority. But it does require them to acknowledge that there are community members who are in complete agreement with institutional mission, confess as Christians, and see loving others (regardless of their position on same-sex marriage) as an expression of both. We will need to avoid the temptation to “explain away” the difference of opinion on sexuality by casting those who are affirming same-sex orientation and relationship (or, at least, not condemning) as somehow “not Christian”. This was what drew WorldVision to their short-lived action last year.
This week’s news of Tony Campolo and David Neff is an illustration in point. They both said that it was time for the evangelical church to move toward affirming same-sex relationships. On the one hand, Campolo’s move wasn’t surprising — he’s been heading this direction for years with help from his wife Peggy. Neff, the former editor of Christianity Today, seemed to catch more people by surprise; so much so that the current editor wrote a response that included the following:
We at CT are sorry when fellow evangelicals modify their views to accord with the current secular thinking on this matter. And we’ll continue to be sorry, because over the next many years, there will be other evangelicals who similarly reverse themselves on sexual ethics (emphasis mine).
This notion that evangelicals don’t reach difficult positions on their own is going to be hard to sustain. Far better to engage the serious discussion among colleagues in Christ. The implication given here is that “real evangelicals” know where they stand yet folks like Campolo and Neff have only been interested in aligning with secular thinking.
The diversity of thought on this issue is real. As the Public Religion Research Institute found last year, 43% of millennial evangelicals support same-sex marriage. When we consider the correlation between educational level and support of same-sex marriage, I’d imagine the data for Christian University students to be closer to 50% in favor and 50% opposed. This is a legitimate starting place for our conversations. Data has also consistently shown that an unwillingness to address these questions is one of the prime factors in millennial drain from the church. Consider this quote from the PRRI study:
“There are significant generational divisions among some religious groups regarding the effect church stances on gay and lesbian issues have on young people. A majority (55%) of white evangelical Protestant Millennials believe religious groups are turning off young people because they are being too judgmental about gay and lesbian issues.“
I would argue that it’s not judgmentalism that is the challenge but the inability to have real conversations.
4. We need to have a real conversation about same-sex marriages
Not in the abstract but in the specific. Given the limitations of human resource law on what one can ask in an interview about a candidate’s family situation, it is quite likely that a Christian University will find out that the top candidate for that vacancy, a committed Christian with an excellent teaching and scholarly record and a love for students, happens to be legally married to another man. In fact, I think such a discovery is right around the corner.
Or, as another colleague pointed out, those two single friends on the staff will go off and get married one weekend. This is not a potential situation but one that is quite likely for a number of reasons.
There are serious EEOC legal issues here. I believe the Christian Universities can make a positive affirmation about why heterosexual marriages are the only ones they support in hiring but much more work is needed to make that case. Certainly something more robust than “we don’t believe in that”. There is likely a clear educational case that makes such a hiring distinction essential to the ability of the institution to accomplish its goals but that must be clearly specified. Otherwise, the governmental intrusion on religious institutions that many evangelicals fear may actually come about.
My thinking on these matters has been strongly influenced by the work of John Inazu. John is a law professor at Washington University Saint Louis. He has a book coming out on his topic of Confident Pluralism. Here is an extended excerpt from the introduction he shared on twitter:
Confident Pluralism takes both confidence and pluralism seriously. Confidence without pluralism misses the reality of politics. It suppresses difference, sometimes violently. Pluralism without confidence misses the reality of people. It ignores or trivializes our stark differences for the sake of feigned agreement and false unity. Confident Pluralism allows genuine difference to coexist without suppressing or minimizing our firmly held convictions. We can embrace pluralism precisely because we are confident in our own beliefs, and in the groups and institutions that sustain them.
This confidence in our own convictions reinforces our differences and increases the risk of friction. For this reason, Confident Pluralism differs from a number of other proposals that seek consensus across difference, including various strands of Rawlsian liberalism and, before that, mid-twentieth century liberalism. It comes much closer to law professor Abner Greene’s claim that consensus proposals seek a “false solace” in attempting to overcome difference and “we do better by recognizing difference as something we can’t get past.” Confident Pluralism does not suppress or ignore conflict—it invites it.
At the same time, Confident Pluralism recognizes that we have better and worse ways to live out our own confidence and to negotiate the pluralism around us. Confident Pluralism should not be misread as the rejection of any consensus at all—it is not an invitation to anarchy. Like any serious proposal of how to live together in society, it draws upon certain shared resources and aspirations. We retain some modest unity in our diversity (emphasis his).
Whatever the Supreme Court determines in the next few weeks, we in Christian Universities will need to work our way through what it means to exhibit Confident Pluralism. We will regularly interact with those who do not share our values (including some in our own institutions).
But we need to do the hard work of really focusing on key issues, explaining those issues to any interested parties, and distinguishing the essential elements from those that are simply differences.
The future of Christian Higher education depends on our ability to engage this task.