Judicial restraints

Certain institutions are so crucial to a decent society-and yet so easy to ruin-that law steps in to shield and honor them. Preeminent among these is marriage, the seed of the family.

To make sure that only those old enough to know what they are doing can get married, the law sets age limits. To make sure that no one is married in careless haste, it decrees waiting periods. To protect the weak and vulnerable, it declares what the spouses owe not only to each other, but to the children that come from their union. To enforce these protections, it keeps track of who is married. Finally, in gratitude for the benefits of marriage and in recognition of its burdens, the law invests marriage with benefits and privileges that the unmarried do not enjoy.

One can honor and cherish marriage only with a firm understanding of what marriage is. Mere sex is not enough to make a marriage. Child abusers are not married to their victims; people who practice bestiality are not married to their pets; neither heterosexuals nor homosexuals are married to their live-ins. Such relationships are either incapable of giving rise to families at all, or incapable of giving rise to healthy and stable families that provide security and sound models to children.

You would think that people who do not believe in the institution of marriage would simply seek to have it abolished. Today they are more subtle; they betray it with a kiss. Rather than declaring that nobody should be married, they declare that anyone can be married. Their demand is that people who are not married be treated by the law as though they are. The main form of the demand is equivalency between same-sex union and the union of a man and a woman.

Christians have a number of strong reasons to join with other citizens to safeguard the legal definition of marriage. We share two of these reasons with nonbelievers. First and most obvious, marriage is procreative. Although occasionally a marriage is incapable of producing children, fruitfulness is the natural tendency of union between man and woman. The second is that marriage is a partnership in procreation, a union not only for bringing babies forth but for raising them. All children need both a mom and a dad, and the marriage of mom and dad helps keep them together. These reasons for protecting the legal definition can be understood by anyone, whether Christian or not.

We also have additional reasons that are distinct to the Christian faith. When a husband and wife are united to Christ, they become a living sign of His sacrificial love for the church and the church's adoring response. Awed, Paul calls matrimony one of God's "mysteries" (Ephesians 5:31-32). This sign is provided first for believers, to deepen and edify their faith. But it is also for nonbelievers. Through it, they are offered a glimpse of holy purity that the fallen world cannot provide, a glimpse which invites them into grace. These "pearls" are not the sorts of arguments that can be flung about in the barnyard-but they ought to increase our zeal for the ones that can be.

The legal dangers to marriage are not difficult to understand. First, even in states where legislatures are too sensible to define unmarried people as "married," judges may invoke constitutional language about equality to force them to do so. Second, because of the Constitution's "Full Faith and Credit" clause, what one state does affects all the others. If Sam marries his wife in California, Texas will also call the pair married. So what happens if California lets Ernest "marry" another man? Texas might be forced to recognize the "marriage" too. It is as though one state could make binding laws for all the others.

The solution is a legal definition of marriage that applies across state lines. Such a feat can be accomplished only by constitutional amendment, but great needs call forth great efforts: A Federal Marriage Amendment (FMA) has just been proposed in Congress with sponsors from both parties. Spearheading the drive for the FMA is the Alliance for Marriage (AFM), founded and organized by Matt Daniels. Mr. Daniels is an evangelical Christian. However, the AFM has put together an astonishingly broad coalition including Protestants, Catholics, the historical black churches, Jews, Muslims, members of other religions, and secular pro-family groups. As it was with the 19th-century drive to abolish slavery, so it is with the 21st-century drive to defend marriage: Success requires that the movement be more than a Christian pet project, but the leadership of the movement is dedicated to the leadership of Christ.

Section One of the FMA provides the necessary definition of marriage: "Marriage in the United States shall consist only of the union of a man and a woman." By itself, Section One does not tell how to regard attempts to get around the legal definition of marriage, by defining new legal relationships such as "domestic partnership" and giving them some or all of the benefits traditionally associated with marriage. Such get-arounds are bad, of course, but there is a right way and a wrong way to oppose them.

The wrong way to protect against get-arounds would be to weaken federalism and self-government by telling states that they are simply not allowed to reallocate the benefits traditionally associated with marriage. But constitutions should not be nannies; the states should be able to make their own mistakes. The right way to protect against get-arounds is to strengthen federalism and self-government by telling judges that they are not allowed to force legislatures to reallocate the benefits traditionally associated with marriage. Experience has shown that activist judges-not legislatures-are the real problem; despite all, the people and their representatives still have some good sense. This right way to protect against get-arounds is exactly what Section Two of the FMA provides: "Neither this constitution or the constitution of any state, nor state or federal law, shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups."

Although evangelicals should fight hard for ratification of the FMA, nothing is simple, and certain objections can be anticipated-not only from nonbelievers but from fellow Christians. The most likely objection from nonbelievers is, "You Christians are trying to cram your religion and morality down the throats of everyone else." But this is false; the FMA does not force anyone to get married, to go to church, or to practice Christian sexual ethics. Moreover it is supported by a broad coalition, not just by Christians. The institution it protects has been recognized by all cultures throughout human history as necessary for the common good.

What about Christian objections? One such objection might run, "Marriage is too deeply endangered to be saved by a mere constitutional amendment; what the country needs is a change of heart." Paul pointed out that even though the Law of Moses could not save, it helped God's people recognize their need for a Savior (Galatians 3:23-24). In the same way, although the country does need a change of heart, the laws under which we live have a great deal to do with our ability to recognize such a need. No one suggests that the FMA alone will save marriage, but we can be sure that if we fail to ratify the FMA, then the cultural threat to marriage will grow much greater than it is already.

A third possible objection is that "It doesn't matter what the laws of the government say, because we Christians are called to a higher standard of morality." In God's Word we do have a higher standard, but what the government does affects us too. Bad laws pollute the public square that we share with nonbelievers; they undermine the faith of weak believers; and they place stumbling blocks even in the path of the strong.

Finally, some Christians might argue, "I like the FMA, but I don't want to work together with non-Christians to ratify it!" Like it or not, biblically oriented Christians are a minority, and no important legal measures can be passed without working together with people of other religions. There is biblical precedent for doing so: Pharaoh oppressed God's people, but Cyrus worked with them to bring about their restoration to the holy land. And let's not forget that the New Testament writers who commanded good citizenship were writing not in Christian countries, but in the pagan empire of Rome.

The union of husband and wife is a good thing. It is more than a good thing; it is a great thing, worth fighting for. What we do about the FMA may determine whether the world that our children inherit will even recognize this beautiful gift of God. Right through the tears and tarnish of the fall, its beauty yet gleams. May God grant us grace to pass it on undimmed.