Law, Grace and the Courts

The California Supreme Court's decision in the six consolidated appeals captioned In re Marriage Cases in which the state's fudamental constitutional right to marry was held to apply to same-sex couples as well as to heterosexual couples seems to me clearly appropriate as a matter of that state's jurisprudence--it builds on Perez v. Sharp (1948), which used similar logic to strike a state statute forbidding interracial marriage.

The arguments pressed on behalf of the right to marry were the same as those accepted in Perez; the arguments pressed against were very similar as well. So, clearly, the California Supreme Court was not breaking startling new jurisprudential ground. What they were doing, instead, was following the logic of the law, instead of (to paraphrase Holmes), experience, which tends to be its life. Where logic leads to bucking tradition, there is often a shocked reaction. But legal reasoning, which is not policy-making by judicial fiat, often can upset the status quo. (For a more extended doctrinal discussion of the decision, I refer you to Lady of Silences).

To put it mildly, the conservative Anglican blogosphere does not get this. Not at all. The many commenters who refer to the "sin" of gay marriage seem to think that that is suficient, in a pluralistic society, to justify a retention of the status quo. Now, I don't agree, even slightly, with the premise that same sex relationships are in esse sinful. But I think that there is a bigger philosophical issue I want to think about, the premise that the State should enforce religious doctrine. Simply put, this is an argument for theocracy; an argument that the secular law should reflect the law of God, as they see it.

I have to admit, I find this reasoning not just bad political theory, but also bad--very bad--theology. It's both unbiblical ( "render unto Caesar the things that are Caesar's"; "My kingdom is not of this world," anyone?), and unsustainable.

What I mean by that last part of this is that the fundamental concept of mirroring the law (civil) to the law (divine) is in error. As a lawyer, I know that law is a blunt instrument. It seeks finality, and a determination of right or wrong that can be reduced to a brief order. Law and Grace are inherently in tension. Not contradictory, but in tension. Where each can be afforded their rightful sway, this tension can be creative and dynamic, as I think St. Paul makes clear in Romans. It's not that Grace obliterates Law; it transmutes it from something externally imposed to the harmony of created with Creator.

In civil society, the role of Grace is severely circumscribed. Not entirely obliterated, mind you; the pardon power allows the Executive to forgive the offenses of convicted criminals, and in New York law a court may, under especially compelling circumstances, dismiss a criminal indictment in the interest of justice. But a civil court cannot forgive seventy times seven times. The decision to forgive belongs to the wronged person, not the neutral arbiter assessing guilt and, where required by the law, punishment. And Law is expressly seen as the application of force, socially authorized violence, to put it bluntly, to secure compliance with society's rules. So those who seek to pour Christian concepts into the civil law are in fact cutting them off from their source of spiritual power. Even if they were to succeed, they would uncouple Law from Grace, and end up with a harsh caricature of Christianity--as did the Puritans, and for much the same reason.