What now?

[dolfan]

Let's set aside for now the legalities of gay marriage and the likelihood of who will ultimately prevail in the California Prop 8 litigation. Let's take, for the sake of discussion, the current state of things -- that being the trial court's order that after Wednesday of this week the Prop 8 ban is off the books -- and assume that, at least in California, gay marriage is here to stay. Let's go one step further and assume that a hodge-podge of state-by-state decisions one way or the other remains just that for the time being.

My question is this: What now? What is the response of the church?

By now, I've made it sickeningly clear that my view is that the civil government has zero to offer. It is my view that the state has failed the institution of marriage and that it is wholly and hopelessly incompetent from the get-go to speak to marriage at all, and that the state should never have done so. I believe that marriage belongs to the church.

Some months and years ago, Tim Elston and I disagreed on this issue here. It was, in a nutshell, his opinion that because marriage is older than any religious system and because marriages have always been regulated in great degree by secular or at least not-strictly-religious organisms that my view about marriage belonging to the church is --- not in his words, now --- balderdash.

And, it is factual: Secular institutions have largely escorted us to this point in the history of marriage. It is also factual, however, that they have almost exclusively governed who may have and hold children. That exercise, as I see it, is no model of success. But, that only begs the question of who does the best job with marriage, not to whom marriage actually belongs.

So, is the church just another bit player among many in the historical script of marriage in human history? Or, do we seriously believe that Jesus authoritatively stated, for the church, what marriage truly is in its essence, form and function? If we do believe Jesus about marriage, is it some form of sacrilege to yield to the state what is God's to define and govern?? Or, is it acceptable or even preferable to allow the co-option of marriage by both the state and the church? If it is acceptable, what now when the state takes marriage and defines what it is and who may marry whom in a way that is completely opposed to the words of our Lord?? Should the church feel buyer's remorse now, hundreds of years after the fact? Or, is there another and more biblical way to approach this question, and if so, what does this approach say about the relationship of the believer and the civil government??

[beckrl]

My only hope is that the church would step up. Because if the church don't define what marriage is then the state will for us. But I fear that maybe to late.

[dolfan]

9th Circuit Court of Appeals leaves the stay in place until the appeal is heard. I don't know what it truly means. It may mean that they go ahead and consider the standing issue outright, leave the stay in place, then rule there is no standing to appeal.....or rule on the merits. At least they had the decency to let the will of 7 million or so voters in the majority mean something for now.


But, my question remains.........

[oletimer]

What is to keep a judge of equal or greater standing that is not gay make a rulling for the Prop 8 ban?

[Full Quiver]

The FEDS need to stay out of these State Issues. Federal courts ought not be ruling on State Constitutional issues.

[dolfan]

Oletimer -- The case is now before the 9th Circuit Court of Appeals, which is the most liberal by far of all the federal appellate courts. The current spin by the talking heads on TV and in print -- and they may be right -- is that the losing side in the case has no standing to appeal the case since they do not suffer a direct injury from the trial court ruling. This is really a shrewd move and the Prop 8 proponents have really done a horrible job with this case in court.

The defendants in the case are actually for dumping Prop 8 even though, under the law, if Prop 8 were to remain in place they'd be responsible for enforcing it. The attorney for the Prop 8 side was actually representing the voters, or actually a group of activists representing the interests of voters for Prop 8; his "side" of the case was not that gay marriage is wrong or even unlawful, but rather that the voters' voice should matter. He put on two witnesses --- two --- and one of them was so bad that the judge said his testimony was inadmissible as expert testimony on marriage. That attorney, Charles Cooper, I'm sad to say is a University of Alabama School of Law alum. He did such a poor job at trial that he actually presented no evidence against the Prop 8 opponents' contentions that the ban violated the equal protection clauses in the U.S. Constitution.

Now, all of that matters here because the appellate court can only rule based on what is on the record in the trial court, at least that's the proper and judically restrained approach to a case. If the court goes outside of the trial court record, that is really liberal activist judging. We all want courts to exercise judicial restraint, and if the 9th Circuit actually does that here, well, there's nothing in the record to hang their hats on if they were going to consider whether the pro-Prop 8 side had valid evidence and arguments. So, we're put in this really ironic situation --- the most liberal court in the country can do the most judicially conservative thing and STILL find that Prop 8 violates the U.S. Constitution. This is the fault of the Prop 8 side for the most part. The case has been bungled, and it may bungle itself into precedent. Procedurally, it is very, very odd and weird the way this whole thing has unfolded.

I don't know what'll happen. The 9th Circuit could find that the Prop 8 supporters at trial do not have standing to appeal, and that, too, would be right in line and right on point with the most conservative SCOTUS opinions on standing. It could, on the other hand, say that the Prop 8 supporters were not sufficiently represented in a sense, and send the case back for a new trial or additional evidence before making a ruling. I doubt that will happen, but it could. I think it would be the best to hope for. Still, though, the 9th Circuit could just say, "We agree with the trial court. Prop 8 fails to pass U.S. Constitutional muster," and on it would go to the U.S. Supreme Court. I can imagine Scalia having a field day on this one ---- I think he'll be madder than a wet cat because of the way this has been handled by counsel for the Prop 8 supporters. It wouldn't surprise me if this case winds up being one of those cases where the court is split into two very hostile camps as in Bush v. Gore. Whether that's good or bad is up to anyone's opinion.

FQ -- I'd prefer it as you say, but we're in well-charted territory here. Miscegeny (interracial marriage ban laws) were held to violate the U.S. Constitution. By the same token, where a state law stands in patent contradiction to the U.S. Constitution, the Supremacy Clause dictates that the state law must give way. I'm not agreeing that Prop 8 does violate the Constitution, but right now this case is in a posture where the state law is said to violate the U.S. Constitution because a court of competent jurisdiction said so. The law is, for now, in a state of flux on that issue as it concerns Prop 8. Whether you and I agree with it or not, it may yet be law that Prop 8 violates the U.S. Constitution. I don't necessarily agree with you that this case is somehow an infringement on states' power to regulate marriage and that the federal courts should stay out of it. For me to get to that point for sure, the Prop 8 side of the case needed to have presented evidence in support of that idea -- they flatly didn't even try to. In fact, the lawyer for the Prop 8 side said, "We don't need evidence." That, my friend, is litigation suicide, especially in a federal court.

Alright ---- who wants to tackle the real question --- what is the church to do?

[forestwalker]

Alright ---- who wants to tackle the real question --- what is the church to do?

What is this "the church" you speak of? I've made pretty much the argument you're making in the OP for over five years, but I have to admit that there is no church in America with the authority to form and discipline its members in the way that would be necessary to maintain Christian marriage. We're secular and individualist to our core. Christian community in America is only possible by very consciously rejecting much of Americanism. Even then, the necessary community is pretty thin, perhaps even non-existent.

Here's a good essay that's pretty close to where I'm at:
http://www.bigquestionsonline.com/blogs ... vilization

[dolfan]

Alright ---- who wants to tackle the real question --- what is the church to do?

What is this "the church" you speak of? I've made pretty much the argument you're making in the OP for over five years, but I have to admit that there is no church in America with the authority to form and discipline its members in the way that would be necessary to maintain Christian marriage. We're secular and individualist to our core. Christian community in America is only possible by very consciously rejecting much of Americanism. Even then, the necessary community is pretty thin, perhaps even non-existent.

Here's a good essay that's pretty close to where I'm at:
http://www.bigquestionsonline.com/blogs ... vilization

I haven't read the essay, but let me say this ......

Bing. Go.

We're secular and individualist to our core. And, man oh man I know I'm about to take one on the chin here, but I say this with a heavy, heavy heart and not out of being lecture-y: Our American values are, indeed, in the way of the Way. Please don't misunderstand me --- I love America. "This is MYYYY country, land that I love....", all that. Last night, I was at an occasion where we said the pledge of allegiance, and I mean it when I say it, but I'm so very conscious of the inescapable fact that an anti-Christian interpretive grid is woven through that fabric that makes up this nation. If we compare America to other nations, I say we're best. But, that's not the relevant measure, and it a hopeless one at that. The only measure is the church.

I know that the entity that Jesus launched, leads, died for, and has plans for is real --- more real than any other order of things in all of reality. And, I'm more and more convinced that it alone holds any promise, and that any concern with anything other than it is grossly misspent. And, it churns in my heart every day and night because I frankly don't know what to do about it within my life, my family, my home. I don't even SAY this stuff to anyone else.

You know, it was odd, but a fellow I knew some years ago, only vaguely, but we went to the same church, walked into my office out of the blue. Now, folks, my office is not exactly one you'll see unless you're looking for it or just happen across it. I'm in an old storefront building that is fairly non-descript and with a few other small businesses that -- with the exception of the hoity-toity yoga studio downstairs -- the people who work here work OUT of this building and don't generate traffic to it. And, the guy wasn't looking for me in particular, just a lawyer, had a question, and we struck up what turned out to be a 90 minute conversation about this very thing -- and a few other things that he was discussing that were near and dear to him so to speak.

So, as I even just find words for this now I don't even know where to start. I know it seems crazier than a football bat. I feel as out of place working in this system of government as a cook would in an automobile assembly line. I try to find an analogy. Remember the movie, "The Others" with Nicole Kidman? The ghostly family of a mother and two children inhabit a house that THEY come to believe is haunted. They carry on inside the house as if what they're doing is real, as if they are alive and concerned with their own well-being, thinking that they are having brushes with "ghosts". Turns out that the mother and her two children are ghosts (a murder suicide by the mother) and that the people they are having brushes with are new actual inhabitants of their old home place.

We're ghosts in our own house. We're here, we're home, but there's a really really real something that we touch and we're aware of that here, too. We really don't "belong" here now. But, we've set up housekeeping in place that really belongs to someone else now. Only, we keep wanting it like it is when, truth of the matter is, reality is that thing we occasionally bump into with a certain fascination. The analogy breaks down now: the difference is that the "reality" wants us (in fact, requires us) and we can, indeed, move into it. And, to me at least, that's the tragedy ---- we don't. We won't. We can't. We are still looking through a glass darkly and, seems to me at least, that part of it is our own doing.

So, yes, forestwalker, I see your point. And, the frustration level is really high for me because I seriously want to be that church and I don't know of anyone anywhere that sees this in the way I do. Maybe I'm just wrong. But, it sure is a pain. I do know this .... THIS (that is, the order of things as they exist today) ain't workin' and it never has and it never will. Jesus called us to something much different than even our best imaginations and efforts are leading us to become.

I'll say this, though, in counterpoint to my own self: There's reason to hope. People who are serious about God, about the Bible, about being and doing the way of Jesus, continue to step up. I count the recent Assembly as evidence of that. I see little seeds of it in the local church (a COG congregation) where I now attend. So, I go, I give, I worship, I pray, and I hope that I'll be transformed (me and my family, that is). I don't want to spend my life being an armchair critic or a cynic, and that's a very serious risk for me.