Thinking Anglicans

A Christian case for Equal Marriage

Ekklesia has published a research paper by Savi Hensman titled Should equal marriage be rejected or celebrated by Christians?

The full paper can be downloaded as a PDF file here.

The paper is a response to Gay marriage and the future of human sexuality by John Milbank published last March.

The possibility of opening up marriage in Britain by law to same-sex couples has been criticised by some Christians but welcomed by others. One of the more thoughtful critics is theologian John Milbank, who has eloquently expressed some common arguments against change. This response by Savi Hensman suggests that, while he raises important issues, his analysis is ultimately flawed. Taking into account such topics as tradition, sexual ‘complementarity’, childbearing and sacrament, there is a strong case for equal marriage.

Two other papers by Savi Hensman have been published at the same time:

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Simon SarmientoRichard AshbyDavid ShepherdErika BakerSusannah Recent comment authors
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Susannah
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Susannah

John Milbank: “Equally, the increased crisis of the masculine psyche suggests that we cannot just remove by fiat the greater propensity of men towards danger, risk, physicality, objectivity, transcendence and the need to be in charge.” Crisis? Or resistance to changing roles and the de-construction of stereotypes? Why should men feel crisis if women also possess some of these qualities? Why should they “need to be in charge?” Excuse me! Surely we have moved on from the idyll of the fifties housewife. Surely we have come to recognise that many of those stereotypes were patriarchal, restricting women to certain social… Read more »

Susannah
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Susannah

continued…) These are simply stereotypes that can “contain” women, or limit what women may be, and honestly… they seem so old-fashioned in an age when women are stepping up to opportunities, and are able to say, actually, I like getting physical, I dare to face risk, I am prepared – along with men – to be in charge, if the opportunity is there. And rightly so. I have two daughters. No, I do not want their husbands to “need to be in charge”. It is such a patriarchal, frankly sexist assertion. Are you kidding me? Men should be in charge?… Read more »

Susannah
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Susannah

(concluding…) Marriage is about covenant and relationship. And lesbian, gay, bisexual, asexual, genderqueer, transsexual, or just plain ‘fluid’ people – men who don’t need to be in charge, women who risk their lives policing our streets – are just as able to commit to covenant and relationship as heterosexual couples. I am heterosexual, incidentally. But I believe that the model of Christ and the Bride is speaking to us about covenant and relationship, about faithfulness and tender care… I don’t see anywhere in the metaphor of Christ and the Bride that we need to have babies with Jesus. The strongest… Read more »

David Shepherd
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Although I don’t endorse Millbank’s position completely, it’s worth reviewing Savi Hensman’s rebuttal. The title, ‘Should same-sex marriage be rejected or celebrated by Christians?’ establishes her intent to underpin her argument for same-sex marriage from a Christian standpoint. The first of her counter-arguments is: 1. Millbank’s position on sex and gender is an ‘over-simplification of the ways in which gender difference has been, and is, lived out’. To his credit, Millbank qualifies his remarks by saying:’allowing that all generalisations are of course weak and constantly subject to exception’. So, to suggest he is advancing an over-simplified view of gender difference… Read more »

JCF
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JCF

Yes, the need to protect “the masculine psyche” from NOT “being in charge”, has the same priority as “protecting marriage” from Teh Gays.

Which is to say, I’ll get around to it sometime after the Twelth of Never.

Tobias Haller
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Tobias Haller

“The counter-argument must prove that the current normative legal standard of life-long affinity need not be overtly constituted as congruent with the wider framework of socially beneficial biological kinship.” David Shepherd David, I do not think that the normative legal standard of marriage is based on biological kinship. It is based on mutual fidelity. The fact that civil law on marriage also includes a good deal of information about inheritance rights and so on, does not undercut the fact that the basis of marriage is the marriage contract — which while it (and note the import of the words) allows… Read more »

Tobias Haller
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Tobias Haller

In case my earlier comment was not clear enough, let me add that marriage should be treated under concepts of contract law; that is, it is an estate freely entered into, by two persons legally capable of doing so, by means of a covenant and contract. No one is forced to marry, and no one is “naturally” married (as with citizenship, which is more analogous with birth than marriage, in that some are citizens by nature, and others by “adoption”). My suggestion is that Mr. Shepherd has the wrong “template” in mind, one which is only “normative” post facto, and… Read more »

Susannah
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Susannah

The heart of the “template” – if the template is Christ and His Bride – is surely covenant, faithfulness, relationship, and mutual love. There is no issue of having babies with Jesus, or safeguarding the kinship rights of the next generation, albeit, as children of God we are kin. Commonsense suggests that the heart of why people get married is tied up with relationship, with bonds of love, with covenant and faithfulness. ‘Kinship rights’ are not at the forefront of people’s minds when they date, fall in love, give themselves to each other before God. Christ and Bride are ardent… Read more »

David Shepherd
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Tobias: Thanks for your reply. Affinity is essential to marriage. This is not a mere social concept, but a legal obligation. Kinship by affinity, that is the legal bonds established through marriage between spouses and their respective families is created by marriage without the need for children. The other form of kinship (by descent) does require procreation. ‘that is, it is an estate freely entered into, by two persons legally capable of doing so,’ Exactly, so, on what basis can the contract be annulled and treated as void, in spite of the averred intent of both parties? We both know… Read more »

Gary Paul Gilbert
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Gary Paul Gilbert

John Milbank’s argument for so-called gender complementarity necessarily bases itself on outmoded gender stereotyping. The qualification ‘allowing that all generalisations are of course weak and constantly subject to exception’undermines his argument. The whole thing is tautological. A tradition of exclusion cannot justify itself by referring to previous practice. Alas, religion tends to justify prejudice by appealing to previous practice! The idea of the “natural” must be deconstructed. There is no “natural” relation. Even citizenship is not natural but a cultural construct. The first section of the Fourteenth Amendment of the United States Constitution had to insist that those born or… Read more »

Counterlight
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Never thought I’d see the day when the right wing religious would argue for biological determinism.

Tobias Haller
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Tobias Haller

David, affinity, like the marriage bond itself, is not created by consummation, but by the matrimonial contract. “Affinity arises from a valid marriage, even if not consummated…” (1983 Code of Canon Law, Canon 109) You continue to press on the issue of consummation as it if were constitutive of marriage. A marriage is a full legal marriage prior to consummation — if a spouse were to die prior to consummation, the survivor would still be the legal widow. You continue to press on the issue of voidability, when the real question is not one of ending marriages, but of creating… Read more »

David Shepherd
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Tobias: You quote from the Catholic canon, as if it can be applied wholesale to the UK jurisdiction. The issue that you haven’t dealt with is the legally understood *intent* of both parties to the marriage. A non-issue to you, but not to our legal system. Intent is constitutive. You highlight the importance of consent. You define marriage as a contract: offer and acceptance, yet the legally defined good consideration of the marriage contract is a theoretical abstraction. You do not answer the question: ‘consent to what?’ within the legal framework of marriage. What actions are minimally understood in UK… Read more »

Tobias Haller
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Tobias Haller

David, the question is one of law, and its alteration. I know that UK law does not permit SSM. You advance arguments you feel demonstrate changing the law is not impossible. You raise”affinity” — an after-effect of marriage, largely to do with limiting who one may marry once a marriage has been made. It has little to do with the marriage itself. I raise the RC and other national law to demonstrate that this is an arbitrary principle, and that change is possible. Cf. Murphy, _International Dimensions in Family Law_, “While English law treats non-consummated marriages as voidable, other systems… Read more »

Susannah
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Susannah

Tobias: “This seems to me to apply to the issue of same-sex marriage if one takes your view that such marriages cannot be consummated, as it removes “consummation” from the contract, since both parties know they can not “intend” consummation.” And what about a transsexual partner and marriage. I know several married couples, where the partner previously delegated ‘male’ transitioned to align her genitals with her gender. In each of these cases, though the transsexual woman clearly no longer provides sperm, the couple love each other, want to remain married, and *have* remained married (in a lesbian relationship). Is their… Read more »

Susannah
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Susannah

(concluding…) In the case of the transsexual women I cite, they have been denied their legal pension rights and other legal protections (such as the unlikely but unpleasant prospect of wrong-sex imprisonment) because Christian apologists lobbied for a Gender Recognition Certificate to be denied any transsexual woman who would not first divorce the person she loves. This shocking “defence” of marriage is an appalling indictment of the law, simply out of the phobia of two women being married (which they still are), and thankfully it is an anomaly that Equal Marriage would remove. How bizarre that some of the very… Read more »

David Shepherd
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Tobias: Even though affinity is an effect produced by marriage, it demonstrates that marriage intentionally creates and is congruous with a framework of family relationships, rather just one between two people. You stated: ‘I raise the RC and other national law to demonstrate that this is an arbitrary principle, and that change is possible.’ That an aspect of law can vary from state to state does not make it arbitrary, i.e. an unreasonable demand, or an unjust imposition of state authority. The rationale that undergirds UK marriage laws is reasonable, systematic and fair. As I said in other posts, change… Read more »

Susannah
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Susannah

This is words, words, words, but the driving force behind the intention to change the law is not words but the recognition that people live real lives and have feelings and that lesbian and gay couples can sustain marriage and benefit both themselves and society through it. David, if this is the law, as you interpret its intent, then – in the real world and in a Parliamentiary democracy the solution is simple, if the government and other parties don’t favour your insistence on the letter of the law: Just change it. And that is exactly what’s going to happen.… Read more »

Tobias Haller
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Tobias Haller

David, your argument depends in large part on a kind of _mutatis mutandis_ (if things were otherwise such and such would be the case) — and fails to recognize that law is not generic in its application, but always specific, and hence must address actual cases. Thus, if UK law does not “require” consummation — or an intent to conusmmate — for a marriage to be valid; and I believe it does not, as it declares such marriages are voidable but not void (a distinction you appear not to give due weight) then the whole edifice of your argument fails.… Read more »

David Shepherd
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Again, I say ‘consent to what? Fidelity to what?’ The reasoning behind the legal pre-conditions regarding the constitution of couples who consent to marriage has been made clear. The case law endorses this position.

In the absence of any significant response or counter-arguments to this, I rest my case, too.

Feria
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Feria

David: ‘The counter-argument must prove that the current normative legal standard of life-long affinity need not be overtly constituted as congruent with the wider framework of socially beneficial biological kinship. The case for legally endorsing overt incongruence with biological kinship as marriage has not been proved’ I thought we sorted that out in 1549, by including in the BCP marriage liturgy a rubric requiring a certain prayer to be omitted ‘where the woman is past childe byrth’. (The same requirement is still there in the 1662 BCP.) David: ‘Kinship by affinity, that is the legal bonds established through marriage between… Read more »

David Shepherd
Guest

Feria: 1. An individual’s lack of fecundity is not overtly incongruous with the wider framework of biological kinship compared to a pairing that is incapable of consummation, as defined by case law. 2. Interesting that you mention Anne of Cleves. Why was her marriage to Henry VIII annulled? Was it not owing to a lack of consummation? I believe that the title was bestowed on her as privilege for her non-contest, rather than through a change to civil law. 3. ‘If same-sex marriage were legal, and the situation remained otherwise the same, then the Supreme Court would be free to… Read more »

Susannah
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Susannah

David,

You are advancing your argument on your understanding of law, but it’s simple really.

The law can be changed – and it will be.

Erika Baker
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Erika Baker

David,
what are you actually saying?
That the British Parliament could not change the law even if it wanted to?

Because if that is not what you’re saying, then you are simply fighting windmills.
The Government has said it will change the law, and once it has done that, same sex marriage will be legal and all your arguments will be based on yesterday’s law that no simply no longer applies.

Feria
Guest
Feria

David: ‘An individual’s lack of fecundity is not overtly incongruous with the wider framework of biological kinship.’ The fact that it needs its own special rubric in the BCP makes it “overtly incongruous” to exactly the same extent that same-sex marriage would be, because an exactly analogous rubric can overcome the incongruity in both cases. David: ‘I believe that the title was bestowed on her as privilege for her non-contest, rather than through a change to civil law.’ My apologies, you’re right. I thought the title was bestowed by the Treason Act 1540, but on closer inspection, it turns out… Read more »

Richard Ashby
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Richard Ashby

‘For the first time ever, same-sex marriage was approved by an electorate – and not just in one state but in four. Previously same-sex marriage had been sanctioned by state legislatures but had never passed a popular vote. Last night it did in Maryland, Maine, Minnesota (where a ban was defeated) and Washington’. – Guardian US election blog.

So the argument against is now lost. When the peopls are asked directly they approve. I bet the same thing would happen here.

David Shepherd
Guest

Erika: 1. It’s a bit like the Tory commitment to the House of Lords Reform Bill 2012, isn’t it? An actual manifesto commitment (compared to the same-sex marriage proposals which weren’t) was abandoned by the Tories on 6th August this year after opposition within their own ranks. 2. As I’ve mentioned elsewhere: a significant majority (63%) of a recent YouGov poll held the view that ‘he doesn’t believe that it’s right, but is doing it for political reasons’. http://d25d2506sfb94s.cloudfront.net/cumulus_uploads/document/8xrr8zjqs7/YG-Archives-Pol-ST-results-09-110312.pdf (page 8) 3. Labour lead Tories by 11 points in the latest opinion polls. 4. The first Commons debate on this… Read more »

Susannah
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Susannah

David, With reference to your arguments, drawing on the law. The issue at the heart of this is human-based, not law-based. The position of the secular state is that there is a problem with the law, not a problem with the humans and their behaviour. Therefore it is the law that needs changing. Your appeals to law as it stands are appealing to the very thing which it is recognised needs to change. The arguments you use to keep it as it is are the very things which therefore stand in the way of the human situation and needs. In… Read more »

Susannah
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Susannah

(concluding…) Fifty years ago if I felt that the death penalty was wrong, and you said ‘Yes but it’s the law’, the solution would be simple: just change it, we do not agree with the law you appeal to. It is the same with Equal marriage. It is a human-based issue, and its time has come, and the law you appeal to stands in its way. Therefore, government is going to change the law, just as yet more states did in the US last night. The issue is perceived to be that the law should serve the people, not the… Read more »

Erika Baker
Guest
Erika Baker

Ah well, David, it seems you’ve shifted from stating that there is something intrinsically impossible about same sex marriage to accepting that it is merely a long and complex political and legal process.

We can live with that. It might take a little longer but it will happen.

Richard Ashby
Guest
Richard Ashby

David, you ignore the rather important constitutional differences between the UK and the US. By your argument we should also have a referendum on whether the medical use of canabis should be permitted as was approved in two US States. One might also argue for other populist causes, like the reintroduction of hanging and flogging. Both of which no doubt would be approved by popular vote.

David Shepherd
Guest

Erika: ‘Ah well, David, it seems you’ve shifted from stating that there is something intrinsically impossible about same sex marriage to accepting that it is merely a long and complex political and legal process.’ Look at http://www.thinkinganglicans.org.uk/archives/005621.html My post on 10th August (I remember that you were on that thread): ‘Tobias: ‘The fact is you simply don’t want change, and have dug in your heels against it, declaring it to be impossible.’ Who said anything was impossible? No, really. Point me to where I said that. I did state: ‘If gender was a secondary relational requirement and not indispensible to… Read more »

Erika Baker
Guest
Erika Baker

David, thank you. I don’t understand the “decades of case law”, if I’m honest. If the law is re-written to include same sex couples then the new law will apply. They did not refer back to decades of case law when black people became equal before the law, nor when women were given the vote – these thing suddenly create a completely new playing field. And there is very little that needs to be tested in the courts, after all. Once a marriage is valid the same rules apply to both straight and gay and that’s where it ends. There… Read more »

David Shepherd
Guest

Richard:
Since the State local referendum approach is not entirely analogous to our referendum system, I’m not sure what you mean by: ‘When the peopls are asked directly they approve. I bet the same thing would happen here.’

If you view the referendum approach as giving in to populism, why extol the significance of the recent local referendums in the US at all?

To you, an unfavourable referendum outcome is sheer populism and favourable referendum result is proof that the argument against is lost. In your head alone, I’m sure it makes perfect sense.

Richard Ashby
Guest
Richard Ashby

David said ‘To you, an unfavourable referendum outcome is sheer populism and favourable referendum result is proof that the argument against is lost. In your head alone, I’m sure it makes perfect sense’ Should the moderator of this blog allow remarks which seem to allege that I am schizophrenic? David. Are you deliberately misunderstanding what I wrote? I can only think that you can’t follow my logic or would rather not engage with it. I do indeed think that the result of the propositions regarding gay marriage in four US states is of great significance. Don’t you? And I do… Read more »

Simon Sarmiento
Guest

This has gone on long enough. Debate closed.