The advent of same-sex marriage in the various churches of the West has raised all kinds of theological questions, besides the issues of social justice in forbidding marriage to gay couples. It has also been the object of strong attacks, as being “incompatible with Holy Scripture,” an illicit change in the doctrine of marriage condoning “unnatural” and therefore sinful sexual relationships, a development done in contempt of other churches, and so on.
I argue that, theologically speaking, expanding marriage to same-sex couples is not primarily a matter of equality, for social justice is first a moral, not doctrinal, matter. Furthermore, “equality” is a relation of opposition: equal to whom? There needs to be an argument from a doctrine of marriage, that many call “Holy Matrimony”. It remains to be seen how such a theology, until very recently concerning only different-sex couples, relates to same-sex couples.
Complicating the picture for the churches is the secular question of a human right to marriage for same-sex couples. Thirty countries have, at this time of writing, legalized some form of marriage for these couples. This is not surprising, given the rise of the Enlightenment perspective on marriage, which in American and European jurisprudence has become dominant. Building on the notion that marriage is a private contract between equals for their individual satisfaction, United States courts and state legislatures have stripped marriage down to its essentials. It is nothing more or less than a “terminal sexual contract” between two parties.
As a contract, its terms can be dictated in advance in a “pre-nuptial agreement,” and these are enforceable. It can be dissolved without any reason or fault — “no-fault divorce.” Reliable contraception, legalized in the 1960s, has introduced a real cleavage between sex and procreation. Access to abortion, with or without the father’s consent, has deepened this (if this right is returned to all American women…).
All things considered, it should have come as no surprise that, on 26 June 2015, the United States Supreme Court made same-sex marriage legal in all fifty states. However, Justice Anthony Kennedy, writing the majority opinion, concluded with an extraordinary statement that deserves quoting in full: