Susan Brooks Thistlethwaite
Professor, Chicago Theological Seminary

Susan Brooks Thistlethwaite

Former president of Chicago Theological Seminary (1998-2008), Thistlethwaite is a senior fellow at the Center for American Progress.

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Rites and Wrongs

The relationship between the church and the state, between morality and legality, has always been contentious on these shores, even before the founders took pen in hand. The Pilgrims, for example, considered marriage a civil affair and opposed the involvement of the church in marriage. They had had their fill of the state Church of England. This did not prevent the Pilgrims, however, once they were resettled in New England, from trying to legally impose their own views of morality on the residents in their colony.

The way we currently handle marriage is a remnant of our centuries long, partly unsuccessful, effort to disentangle church and state, to disentangle morality and legality.

Have you ever wondered why we keep having these same arguments decade after decade? Century after century? It seems simple on the surface; shouldn’t we be able to keep our faith private and our legality public?

The Fourteenth Amendment of the United States Constitution guarantees all citizens “the equal protection of the laws.” Any law that prohibits gay men and lesbians from access to the legal benefits and protections provided by marriage laws is, in a plain reading of this text, unconstitutional. This is a similar legal argument to the one in the recent decision by the California Supreme Court that held sexual orientation, like race or gender, "does not constitute a legitimate basis upon which to deny or withhold legal rights."

The problem is not with the law; it is that some hold the religious belief that marriage is a sacred covenant and that the sacred cannot include same sex love. These “religious” people will now organize in California and try to get this sensible and objective ruling overturned all in the name of morality.

It is not good enough to declare that the law is public and the faith is private. Faith leaks into the public square all the time and that’s not a crime. There needs to be some coherence between the law and values, even in a country as increasingly pluralistic as ours.

And so it is the values, the morality that will have to change for there to be full equality for gay men, lesbians, bi-sexuals and transgendered people. There is no way around this struggle. Just as the religious folk provided the strongest justifications for slavery and were the last bastion of opposition to equal rights for women, so too are the religious beliefs of some a barrier to equal protection under the law for gay Americans.

And so we need to take this struggle even further into our religious communions and declare that religious rites that exclude are wrong and they are always wrong. It is fundamentally immoral to declare a whole class of people sinners and without equal rights in both church and state. Again.

By Susan Brooks Thistlethwaite  |  May 22, 2008; 10:41 AM ET Save & Share:  Send E-mail   Facebook   Twitter   Digg   Yahoo Buzz   Del.icio.us   StumbleUpon   Technorati  
Previous: Marriage Is More Sacred Than Equality | Next: Equal Rights for All Includes Marital Rights

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Dr. Thistlewaite's observation considering the question of same-sex marriage and the law is correct and right on target. Authentic love transends cultural, racial, poltical or even biological boundaries. The full inclusion of people within the church, in addition to civil soceity, is continues to be a problem. We need more ministers witht the courage and faith of Dr. Thistlewait.

Posted by: Rev. J. Boddie | June 2, 2008 1:47 PM
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The 14th Amendment actually did not afford equal protection to all persons since women, slaves and children were not considered citizens. Section 2 makes it crystal clear that the Founding Fathers deliberately left the female gender out of those protections. The Current Fathers still feel the same.
Why else would Floridians be having such a hard time getting their politicians to vote to ratify the Equal Rights Amendment (ERA) that barely missed passing in 1982 by 3 states' ratifications.
The Equal Rights Alliance, in full recognition that sex discrimination affects both sexes, the equal treatment of the sexes seems a wispy dream, costs the 3 additinal states that ratify the ERA nothing! It also benefits men (think, child custody) and the economy!!

Only 3 more states are needed. Is yours one? Go to www.RatifyERAflorida.net to find out.

sandy oestreich, Prof. Emerita
Fmr elected official
Nurse practitioner
Pres/Founder of ERA Inc

Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex [gender].

What is so frightening about women that men let rock the cradle but prevents them from declaring women and men have full rights to personhoood and self-determination.

You are invited to www.RatifyERAflorida.net for the most complete, current and correct ERA infomation for activists.

Equality for all regardless of gender! What a novel idea. Why not? "Every nation since WWII has an ERA (even Iraq and Afghanistan, where our brave servicewomen fought to bring it)."

Posted by: Anonymous | May 28, 2008 10:54 PM
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Thank you and amen! It is a joy to read such a clear and succinct commentary. Thank you for reminding the American people that the "religious" often use (misuse) their religion to justify discrimination that is essentially unconstitutional.

Posted by: Hazel Hanson | May 26, 2008 8:36 AM
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i see Camilia Parker is in THEY, but You are going to be King.

Posted by: rafamdergem | May 24, 2008 2:48 PM
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Prince Charles

i read about You on newspapers, You have shouted at Camilia Parker in Your bedroom "i shouldnt have left Diana, why did i marry with you?"

a Man, who has learned how precious and worthy they have been, is a King.


Posted by: rafamdergem | May 24, 2008 2:40 PM
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you change the beds of people, you dont know st valentine then. you keep the people where they are. you dont know st thomas then.

you are not with jesus then. you dont have a justice and you are not able to read for accurate accounts.

and you damage humans with your illiteracy, pope benedictus. iwith prayers, it is just insanity and the level of consciousness you are then!

Posted by: rafamdergem | May 24, 2008 2:42 AM
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there is not any god or allah, that you may murder people for.

pope benedictus, You murdered people against Andreas and St Germain. you murdered against homosexuality.

then there is not any god or allah, but just you. that is it.

Posted by: rafamdergem | May 24, 2008 2:37 AM
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stop the earthquakes and mass deaths, why did you murder people in China?

if there were God or Allah, Pope Benedictus, what You order would not happen.

there is just spell, electromagnetic energy, just prayer, and there is not any god or allah.

just humans, insane humans.

Posted by: rafamdergem | May 24, 2008 2:35 AM
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tell this to Pope Benedictus, there is not any God or Allah, but just humans. just encarnated humans, in bodyles s presence or in body on earth.

Posted by: rafamdergem | May 24, 2008 2:31 AM
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we lost our way, we didnt go on our way, we dont know now who we are, where we are !

stop the disputes! make a union and gathering for freedom and agrement on immigration please, for genetic immigration. stop the hypnotize and sleep and leading under consciousness

Posted by: rafamdergem | May 24, 2008 2:30 AM
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STOP JAPAN, STOP CHINA!
stop any other country, or council!

Posted by: rafamdergem | May 24, 2008 2:28 AM
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please stop the experiments and prayers
stop the nuclea and electromagnetic announcments and emissions

you changed our lifes, you destroyed with announcements, you announced poems and articles, STOP RUSSIA, STOP GEORGE SOROS!

Posted by: rafamdergem | May 24, 2008 2:27 AM
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"Arguments like this were made to support anti-miscegenation laws."

Some anti-gay laws *are* anti miscegenation laws, like the overtly-racist one from the nineteen-teens, still on the books cause Federal law made it obsolete, that Romney dug up to prevent gay marriages within Massachusetts from being portable.

Posted by: Paganplace | May 22, 2008 9:13 PM
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"And so it is the values, the morality that will have to change for there to be full equality for gay men, lesbians, bi-sexuals and transgendered people. There is no way around this struggle."

Well, let's not forget, that contrary to certain billing, by no means do all churches and religious beliefs hold that notion that it's sacred to discriminate against same-sex couples.

If we have freedom of religion, here, then even if some churches would want the right to get the state to enforce their dogmas, that other churches would be having their freedom of conscience violated by state power. Even Christian ones.

For my own religion, I have said plenty that trying to have government enforce certain religious sects' will, in this, as in other things over the free exercise of *my* faith, is as much a violation of our freedom of religion as it is a coercion of and violation of my civil rights myself as a queer citizen.

Posted by: Paganplace | May 22, 2008 9:06 PM
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Ken:

Your argument on the Constitution works both ways. Under a plain meaning interpretation, there is nothing in the Constitution that supports any definition of marriage. Thus, the argument becomes: This is the way its always been, so the Framers must have assumed that this is the way it will always be and we should do likewise.
Arguments like this were made to support anti-miscegenation laws. Those laws also applied to everyone alike, and the perceived inequality lay the effects of the desires of those affected by them. That did not mean that they were constitutional.
Stronger arguments against gay marriage than those proposed above have been made in court opinions that distinguished Loving v. Virginia from gay marriage cases. Interestingly, Mildred Loving likened gay marriage to her case on the 40th anniversary of Loving v. Virginia.
In these conversations, it's usually also relevant to note that the trial court judge in Virginia v. Loving primarily used the Biblical theory to support his holding that marriage between different races was illegal because it was contrary to God's plan for creation. Others have drawn on Ezra 9, and the passages on King Solomon's penchant for "foreign women."

As for the theory that sex is binary and complementary, I recommend poking around the Archives of Sexual Behavior website a bit. Human sexuality is not easily summed up in two words. For example, some heterosexul couples engage in activity that is known as "pegging." It could be difficult to argue that this sex act is "complementary," under your theory, even though the act takes place between a man and a woman.

Posted by: Drew | May 22, 2008 5:48 PM
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Ken

We already understand that there is no argument or reasoning we can give that will make the religious community accept gay marriage. We understand that according to those tenets, homosexuality is wrong. Unfortunately, some religious people outright despise gays.

However, I do not live in a church. I live in a country which is made up of many people from varying backgrounds. And when we start imposing civil laws on certain segments of society because it is offensive to our religion, it tells our citizens that we are not all equal in this country.

The state is not the church. So for the state to ban gay marriage because it is offensive to Christian morality is unacceptable. If a church wishes not to recognize gay unions, it is their FREEDOM that they are given to not accept it. But keep it out of the civil arena.

Posted by: Bill | May 22, 2008 5:10 PM
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Actually laws that recognize the historic and universal definition of marriage as a union between man and woman already and absolutely apply equally to homosexuals and heterosexuals alike. Any perceived inequality lies not in the actual application of the law, but in its effects on the desires of those affected by it. Present marriage laws are no more unequal than larceny laws that disproportionatly inconvenience thieves while still applying universally.

The plain reading of the Constitution, which doesn't explicitly address this issue because, absent decades of deconstruction of meaning intended to create massive category confusion, its writers failed to anticipate the necessity of addressing it, in no way makes laws that reflect the universal and historical understanding of marriage unconstitutional.

Sex is binary and complementary; a union of likes on one side of the binary divide between man and woman is not complementary and cannot be compared to a union between a man and a woman across that divide. The attempt to obliterate the truth of that distinction is a subversion of truth itself.

Rev. Thistlewaite's further confusion about the terms of the debate is betrayed by her remarks about disentangling legality and morality. All legislation intrinsically involves moral valuations. Murder, theft, perjury, even procedural laws that exist to ensure equitable outcomes, are laws because they reflect the moral sense of the people and compel those who don't respect that moral sense voluntarily to still heed them. All laws are inherently moral valuations so the only way to excise morality from legislation is to make it immoral.

There is more at stake in the "gay marriage" debate than sexual perversion. The perversion of truth and meaning through linguistic legerdemain poisons debate and by massive category confusion, drowns out the still small voice of reason. The deliberate corruption of language to service idealogy threatens our western civilization.

Posted by: Ken | May 22, 2008 4:23 PM
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How about we take the state out of marrying anyone. There was a time when a state marriage conferred benefits on most people while excluding few. That has changed. Now there are many people (gays and lesbians, people who live together, single people) who cannot enjoy the benefits (financial, social). Perhaps it is time for the law to catch up with what is happening on the ground. Under such a scenario, marriage would be a private affair involving the people most important to the couple, occurring either within a religious context or not. The legal consequences would be part of a set of laws conferring certain benefits on people. In this way, if some religious people feel that homosexuality is a sin, then their church will not perform marriages between gay people. The gay couple can go elsewhere for the ceremony, while their rights, in terms of the state, are not infringed.

My argument here is not a normative one involving whether homosexuality is right or wrong. I personally think that how people want to live their lives and who they want to love is a private affair and no one else's business. However, the above argument is an attempt to disentangle a normative one with hot feelings on all sides from policies that affect many people with differing views on the subject.

Posted by: Maurie Beck | May 22, 2008 2:17 PM
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How about we take the state out of marrying anyone. There was a time when a state marriage conferred benefits on most people while excluding few. That has changed. Now there are many people (gays and lesbians, people who live together, single people) who cannot enjoy the benefits (financial, social). Perhaps it is time for the law to catch up with what is happening on the ground. Under such a scenario, marriage would be a private affair involving the people most important to the couple, occurring either within a religious context or not. The legal consequences would be part of a set of laws conferring certain benefits on people. In this way, if some religious people feel that homosexuality is a sin, then their church will not perform marriages between gay people. The gay couple can go elsewhere for the ceremony, while their rights, in terms of the state, are not infringed.

My argument here is not a normative one involving whether homosexuality is right or wrong. I personally think that how people want to live their lives and who they want to love is a private affair and no one else's business. However, the above argument is an attempt to disentangle a normative one with hot feelings on all sides from policies that affect many people with differing views on the subject.

Posted by: Maurie Beck | May 22, 2008 2:17 PM
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