More Light Presbyterians has posted an article taken from the University of Chicago Divinity School that makes the bizarre argument that defending traditional marriage is a form of “religious violence.” The article, by Lutheran Theological Seminary in Philadelphia professor Jon Pahl, deserves a thorough response. So here goes:

A recent article in The Atlantic and recently released Lutheran documents give good reasons to revisit the status of gays and lesbians across American society.  Unfortunately, few commentators to date have addressed the most troubling development of the past few years:  the growth of DOMA Laws, or “Defense of Marriage Acts.”  These laws are forms of religious violence.

The Federal Defense of Marriage Act, passed in 1996, stipulates that for the purpose of federal laws and operations, “the word ‘marriage’ means only a legal union between one man and one woman as husband and wife.”  According to – a website sponsored by supporters of these laws – thirty-seven states now have some form of DOMA Laws on the books.  The rationales for such defensive laws are often couched in neutral, “secular”, or “naturalist” language.  But the move to establish such laws came from religious groups, notably conservative Protestants, Catholics, and Mormons.  And the logic and appeal of these laws also originates in religion, and functions as a form of violence.  Six theses can clarify the contours of the religious violence embedded in these laws.

The provenance of such laws is completely beside the point (the anti-slavery movement had its origin in churches, too–does that mean the Thirteenth Amendment is illegitimate?). As for the “logic and appeal of these laws,” they are grounded in a combination of natural law theory and reference to the common experience of humanity. The fact that any particular group or individual may support them on religious grounds is also completely beside the point, which is that an “secular” and “naturalist” rationale for such laws is indeed possible, and has been offered repeatedly throughout the decade-plus that such laws have been debated.

1)  DOMA Laws violate sacred texts.  Many of the arguments against gay and lesbian civil unions or marriage appeal to biblical texts from Genesis, Leviticus, Romans, or I Corinthians.  But such arguments impose upon the texts a twentieth century understanding of sexual identity alien to the Jewish or Hellenistic cultures in which these texts arose.

This is irrelevant. DOMA laws aren’t based on “sacred texts,” but on the historical reality that, until the Massachusetts Supreme Judicial Court issued its ruling mandating same-sex marriage, no American jurisdiction had ever permitted it. DOMA laws, then, were simply an effort on the part of legislatures to insure that the status quo remained such in their states. Lots of state legislators, and millions of voters, have voted for such laws who are not religious believers, and whose stands have been based on a cultural understanding of marriage that has nothing to do with the Bible or first century understandings of sexuality.

2)  DOMA Laws elevate heterosexual marriage to idolatrous status.  In some communities of faith, defending “marriage” has become all but an item of confessional status (it is absent from any historic Christian Confessions).  This arrogates to a majority – heterosexuals – special privileges (economic, social, and spiritual) not available to sexual minorities.

This is simply absurd. No supporter of traditional marriage is elevating it to the level of God, which last time I checked was the definition of “idolatrous.” If it has become “an item of confessional status,” that is because it is under attack within the Christian churches, as a result of which many have come to its defense. The reason heterosexual marriage isn’t in historic confessions is that there was no disagreement about it among Christians. Pahl, who purports to be a historian of Christianity, should certainly know that the historic confessions include all kinds of odd matters (oaths, Sabbath observance, participation in government, etc.) that were included because there was disagreement about them, and so the confessors thought there was a need to take a stand. The nature of marriage has become one of those, precisely because Christians like Pahl have made it an issue; hence, there are those who disagree who have taken a public stance on their belief.

3)  DOMA Laws scapegoat gays and lesbians.  As Rene Girard argues, scapegoating is a chief manifestation of religious violence.  It is difficult to see what real threat is posed to heterosexual intimacy, much less to civil society, by the desire of homosexuals for similar rights.  It is easy to see how DOMA laws organize consent over and against a relatively voiceless and powerless group.

Right. And anti-polygamy laws “scapegoat” Mormon fundamentalists. In fact, such laws are meant to express the belief that monogamous, heterosexual marriage is the best way to organize society for the fulfillment of one of its most important functions–the birthing and raising of children. It is possible to disagree with that belief, and to make a case for alternative arragements. But to claim that the arrangement that existed exclusively throughout American history until 2004, and that has existed throughout the West until recently, is meant to somehow specifically punish gays is a view that verges on the paranoid.

Pahl also says that it is “it is difficult to see what real threat is posed to heterosexual intimacy” by gay marriage.” On the level of the individual, there is of course none. What Pahl simply ignores is evidence from places such as Scandinavia that gay marriage has a deleterious effect on societal views of marriage as a whole. Stanley Kurtz of the Hoover Institution at Stanford University has had a series of article in National Review Online over the last several years on this subject. It is possible to dispute the significance of his data, or his interpretation of it. But what Pahl does here is simply act as though it doesn’t exist, so that any opposition to gay marriage becomes simple bigotry. That’s not an argument, it’s an act of, shall we say, rhetorical violence.

4)  DOMA Laws sacrifice homosexual rights, and damage civil society, in the interest of religious purity.  One measure of the justice in any society is how well it cares for vulnerable members.  Sexual difference marks individuals as both vulnerable and “dangerous.”  And as Mary Douglass showed, any “danger” against which a law must defend is invariably constructed around some purity interest.  DOMA Laws require gays and lesbians to sacrifice rights others take for granted, and render them subject to legalized forms of exclusion and discrimination.  They damage the deep trust that is the most important social practice in civil society.

Pahl simply asserts that DOMA laws are meant to serve the interest of “religious purity.” I’d love to know how millions of votes by African-American Baptists, Hispanic Catholics, Anglo evangelicals, Orthodox Jews, Mormons, Muslims, and conservative atheists and agnostics in California last November were supposed to foster “religious purity.” I’d love to know how the DOMA constitutional amendments in Oregon and Hawaii, two of the most secular states in the Union, were supposed to foster “religious purity.” In fact, I’d like to know what Pahl even means by “religious purity.”

5)  DOMA Laws confuse legislation with religion, and violate the First Amendment, as Ann Pellegrini and Janet Jakobsen have argued.  It is entirely permissible (although ethically subject to scrutiny) for private communities to shape the boundaries of association in whatever ways members agree upon.  It is a violation of the First Amendment’s protection of free association to inhibit by law some forms of association that pose no harm to the common good, and a violation of the freedom from an established religion when religiously-inspired exclusions are written into law.

Pahl really should restrain himself from using weaselly expressions such as “religiously-inspired” with regard to legislation. Talk like that is liable to put the Rev. Jim Wallis, and much of the Obama legislative agenda, out of action.

As for the rest, it’s drivel. The fact that people with religious convictions are among the supporters of DOMA laws no more “confuse legislation with religion” or “establishes religion” than the fact that guys in clerical collars could be seen at the front of civil rights marches makes the 1964 Civil Rights Acts unconstitutional. As for the freedom of association argument, Pahl has apparently forgotten that marriage isn’t simply a private relationship, but a pubic contract. The right of the state to regulate who may enter into that contract, using such standards as age, gender, and number, was established in the polygamy case Reynolds v. United States (1878), which upheld the power of the states to regulate marriage. The exact boundaries of that power has changed at times–for example, when Loving v. Virginia (1965) deprived states of the power to prevent people of different races from marrying–but the basic power is in no way an infringement of freedom of association.

6)  DOMA Laws perpetuate an association of sex with power, and thereby do damage to any sacramental sensibility that might remain in association with even heterosexual marriage.  As Hendrik Hartog and other historians have shown, marriages have shifted in the modern era from patriarchal patterns of coverture to social contracts in which couples seek mutual fulfillment.  Such contracts might be compatible with a sacramental sensibility, since they entail pledges of sexual fidelity and commitments to share social resources and responsibilities, along with (one might argue) other gifts of God.  DOMA Laws associate sexual fidelity with legislated forms of coercive power, and inhibit the deep trust and mutuality intrinsic to modern (and sacramental) marriage.  They establish hierarchies of relationships, and associate heterosexual unions (and sexual practices) with dominance.

This is postmodern nonsense, and is itself an effort to confuse legislation with religion. The “sacramental sensibility” of marriage has nothing whatsoever so do with what regulations the state puts on it. The fact is that if churches want to sacramentally “marry” gays, they are free to do so–they can even claim that the couple is married in the sight of God–but that action cannot force the state to recognize a contract. Nor, obviously, can the state force the church to marry those whom the church declares God has said cannot be married. As for the Foucaultian attempt to associate sex with power in the form of state laws regulating marriage, well, let’s just say that I don’t think Foucault has all that much to teach the church about the nature of marriage.

By the way, since when do Lutherans think marriage is a sacrament?

DOMA Laws have been passed with the support and lobbying of religious groups.

As have thousands of other pieces of legislation, from gun control to environmental protection to Social Security. What’s your point?

There is a reasonable argument to be made on both sides of this issue. I stand against same-sex marriage for a variety of reasons, and lots of folks both inside and outside the Christian churches agree with me. There are lots of folks on the other side of the argument, both inside and outside the churches, and it is possible to make a reasonable case on that side as well. Talk of “religious violence,” and red herrings about the First Amendment, and twisting the motivation of one’s opponents so that they are barely recognizable, is hardly the way to further the debate.