Bruce Balcom
The convergence of legal and biblical interpretation in the area of divorce and remarriage provides a compelling case for marriage equality.
In 2015, the Supreme Court decided Obergefell v. Hodges, a case which held that states must issue licenses for same-sex marriages and recognize licenses issued by other states. The ruling was based upon both the Due Process and Equal Protection clauses of the constitution and represented a logical extension of the prior case, United States v. Windsor, which was decided on the same date two years prior.
Windsor held that the Defense of Marriage Act was unconstitutional because it violated the rights of same-sex couples who were denied federal benefits such as preferential tax treatment due to their marriage, legally recognized in their home state, not meeting the federal definition of marriage found in Section 3 of the Act. Windsor was denied the spousal estate tax exemption for her deceased spouse’s estate, resulting in a hefty tax bill. The Court found that since the marriage was legally recognized by the state of New York, the federal government was obligated to recognize the marriage and provide the tax exemption.
Obergefell found that because marriage licensing is a government activity, denying it to a couple based upon the sex of the two people involved was a violation of due process and equal protection as guaranteed in the constitution. Marriage is so significant legally, given the many legal benefits and protections it affords, that this arbitrary denial was seen as constitutionally impermissible.
As a lawyer I find the outcome of these cases unremarkable. It should seem obvious that when a state recognizes a marriage, as New York did in the Windsor case, legally speaking that should be the end of the analysis. To permit another state to refuse to recognize the validity of that state’s action is no different than refusing to recognize the validity of a driver’s license. This is a clear violation of the Full Faith and Credit clause of the constitution.
The same thing is true when the federal government seeks to invalidate a state’s action. The federal government has used state licensing to determine marital status for a very long time. The only reason for the Defense of Marriage Act to define marriage for federal purposes was to discriminate against duly recognized marriages due to the sex of those who were married.
Many churches decried these decisions at the time as an assault on the “sanctity of marriage.” The reason for their objection is purely religious in nature. Conversely, the law is not permitted to take religious objections into account when providing public benefits. That is a foundational principle of the First Amendment’s Establishment Clause.
I find interesting parallels in the law between the very recent issues surrounding marriage equality and the problem of divorce and remarriage. Originally, divorce in the United States was permitted only when someone could prove fault. Generally speaking, to be granted a legal divorce, one had to establish that the other spouse was guilty of something the law recognized as justifying divorce. This generally meant proving infidelity, cruelty, abandonment, criminal conviction, inability to procreate, or permanent serious mental illness. Additionally, the spouse suing for divorce had to have “clean hands,” meaning the suing spouse could not have engaged in wrongful conduct in the relationship, or have known about the bad acts and not relatively immediately taken steps to end the marriage.
This resulted in divorce being expensive, difficult to obtain, and contentious. Often the accused spouse would strike back with counter claims of bad acts. Sometimes those claims were valid, but all too often they were false claims made to prevent the granting of a divorce. As a result, divorces were rare, and typically reserved for the very wealthy.
In the middle of the 20th century, as the civil rights movement began to take form, it was becoming clear that there were plenty of marriages that would legally qualify for a divorce, but due to financial constraints, the innocent spouse would never be able to successfully sue for divorce. As a result, states began to look at ways to make divorce easier to attain.
In 1969 California enacted the first no-fault divorce statute. Over the course of the next two decades, virtually every other state followed suit in some fashion. I recall sermons preached during that time that emphasized the sanctity of marriage, and that any divorce which was not based upon “biblical principles” was not truly a divorce. In reality the objections had less to do with divorce as with the behaviors of those who received a divorce after they were in fact legally divorced. Nothing in the law precluded a legally divorced person from subsequently getting remarried, and for those who viewed divorce through a particular interpretation of scripture, this presented a moral challenge.
For those who received a no-fault divorce, their new found freedom allowed them to be removed from a bad situation, sometimes abusive or cruel, other times simply unpleasant and devoid of love. As they recovered from the trauma of divorce, they naturally found themselves making new connections and sometimes, falling in love again. For certain segments of the church, this was simply impermissible.
Regardless of how the church viewed these new relationships, those newly married people, whether from church families, or the public at large, began having children resulting from those marriages. When they came to church, as new converts, or long time members, they brought their new families, complete with children. The church faced a choice: hold firm to the long-held interpretation that these divorces were invalid and any subsequent marriage ongoing sin, or revisit the interpretation of scripture.
Obviously how the church responded was critically important for the families coming into the church. Would they and their children find a welcoming, loving community or a place that condemned them? Churches like the Church of the Nazarene chose wisely. While refusing to trivialize the covenant of marriage, holding firm to the notion that it was a sacred relationship deserving of commitment and worth doing everything reasonably possible to maintain, Nazarene’s made space for these divorces. The Church of the Nazarene recognized that sometimes relationships simply don’t work out, and despite the best efforts of those involved, going their separate ways is simply the right thing to do.
This isn’t to say Nazarenes simply turned a blind eye toward divorce and remarriage, but we accepted the reality that marriage and culture have changed over time, and the church’s interpretation of scripture must take seriously the whole task of interpretation. That is to say, we must understand what the scripture says, how it says it, and what it meant within the context of its time, and also apply the underlying meaning to today’s context.
There are several instances where the Bible indicates that remarriage while one’s first spouse still lives is sin. (See, e.g. Matthew 19:3-11) Despite the clear scriptural references to the contrary, many churches, including Nazarenes, have refused to impose such a draconian interpretation. There are good theological and biblical interpretation reasons for holding to a more permissive position. Today you would be hard pressed to find a community that does not include divorced and remarried people raising blended families.
Earlier I indicated that I saw divorce and remarriage and marriage equality as parallel examples of how the church interprets scripture in our culture and society. They share much in common. Both involve relationships that are among the most foundational and intimate we have. Both involve biblical interpretation issues where there are scriptural references that seem on the surface to condemn the underlying behavior. Both have arisen in the context of our society determining they are legally protected. Both result in the formation of families with innocent children.
At the end of the day we have a choice. We can choose to refuse to deeply examine our position, choose to decide for God where grace might abound, or we can choose to do the hard work that faces every generation. To take the tradition, scripture and experience of the past and make them new. It isn’t a repudiation of our faith to enter into this work, it is the consummation of that faith. It is offering to this present age the good news of the gospel, where grace goes before us, drawing us toward the love of God.
Bruce Balcom is a third generation Nazarene and practicing lawyer since 1996. He holds a BA in History and MA in Theology from Trevecca Nazarene University, and a JD from Vanderbilt University.