For the power of man to make himself what he pleases means, as we have seen, the power of some men to make other men what they please.
— C.S. Lewis, The Abolition of Man
In the last century, sexual revolutionaries litigated and legislated to remove three pillars of marriage law: first, permanence; second, exclusivity; and third, procreation. The first pillar fell when California Gov. Ronald Reagan signed the Family Law Act of 1969, and 48 states followed with their own no-fault divorce statutes. The second pillar fell when the vast majority of states adopted versions of the 1971 Model Penal Code, which eliminated legal penalties for fornication and adultery. The third pillar fell when the Supreme Court declared unconstitutional nearly all restrictions on contraceptives and abortion in Griswold v. Connecticut (1965), Eisenstadt v. Baird (1965), Roe v. Wade (1973) and Planned Parenthood v. Casey (1992).
In this century, sexual revolutionaries are litigating and legislating to remove the fourth and final pillar of marriage law: sexual difference and complementarity. The campaigns for same-sex “marriage” and “sexual orientation” and “gender identity” (SOGI) legislation share a common legal theory: Rules predicated on the sexual difference and complementarity of man and woman are relics of a benighted legal regime designed to harm “LGBT” persons, or at least deny them “full equality.” In the last same-sex “marriage” case, United States v. Windsor, the majority intimated that section three of the Defense of Marriage Act was motivated by a “bare congressional desire to harm a politically unpopular group.”
Clash of Absolutes
The campaign for same-sex “marriage” and LGBT-SOGI legislation presents the next “clash of absolutes” between two worldviews with very different definitions of the human person. (The last “clash” involved abortion, as summarized in Harvard Law School professor Laurence Tribe’s famous book, Abortion: The Clash of Absolutes.)
The major and growing Abrahamic religious denominations — Catholic, Protestant, Jewish — share a binary view of the human person and human sexuality: male (man) and female (woman) united in “one flesh” union. For two millennia, Christians have based their definition of marriage on the words of Jesus Christ, who incorporated by reference ancient words from the Book of Genesis:
“But from the beginning of creation, ‘God made them male and female.’ For this reason a man shall leave his father and mother and be joined to his wife, and the two shall become one flesh. So they are no longer two but one flesh.”
— Mark 10:6-8 (quoting Genesis 1:27) (NABRE)
Based on this view of the human person, the Catechism of the Catholic Church teaches that every man “should acknowledge and accept his sexual identity,” noting that “physical, moral and spiritual difference and complementarity are oriented toward the goods of marriage and the flourishing of family life” (2333).
For similar reasons, the Catechism holds that “homosexual acts are intrinsically disordered,” “contrary to the natural law,” and “do not proceed from a genuine affective and sexual complementarity” (2357).
This view of human sexuality as male and female stands in stark contrast to the opposing definitions of marriage, sexuality and so-called gender identity promulgated by most LGBT scholars and activists. For example, the Human Rights Campaign’s online pledge for “marriage equality” posits a genderless definition: “I believe that every couple in America deserves the right to marry, regardless of their gender or sexual orientation.” That same website defines “gender identity” as a “person’s innate, deeply felt psychological identification as a man, woman or some other gender, which may or may not correspond to the sex assigned to them at birth.”
The Daily Beast recently reported that Facebook offers 51 gender-identity options: agender, cisgender, genderqueer, pangender, transgender, etc., making it seem as though the human person is more like a pluripotent cell whose sex and sexuality are subject to autonomous self-definition.
The “clash” of these competing views was on full display during the Human Rights Campaign’s 2012 Visibility Award ceremony, which featured an impassioned speech by the director of The Matrix trilogy:
“It will also be the first time that I speak publicly since my transition. Parenthetically, this is a word that is a very complicated subject for me, because of its complicity in a binary gender narrative that I am not particularly comfortable with.”
— Laurence “Lana” Wachowski
Lacking a Lexicon
Because the American political war is fought in 10-second sound bites — “marriage equality!” vs. “traditional marriage!” — the opposing factions cannot achieve clear disagreement on competing definitions of marriage, sexuality and gender identity. Consequently, religious persons and LGBT activists often lack a shared vocabulary for reading constitutions, statutes, regulations, rules and case law.
Consider the term “sexual orientation”: Most Christian denominations delineate three separate categories for human sexuality: (1) attraction, (2) conduct and (3) marriage. Thinking the term “sexual orientation” refers to category (1) but not (2) or (3), many Christian denominations sincerely believe they do not discriminate on the basis of “sexual orientation.” Justice Ruth Ginsburg, a reliable vote for LGBT-SOGI plaintiffs, flatly dismissed these categories in CLS v. Martinez (2010):
“CLS contends that it does not exclude individuals because of sexual orientation, but rather ‘on the basis of a conjunction of conduct and the belief that the conduct is not wrong.’ Our decisions have declined to distinguish between status and conduct in this context.”
The term “gender identity” is even more problematic. The view of “male” and “female” cannot easily coexist with a malleable view that recognizes and affirms 51 gender identities — with more to come. Archbishop William Lori of Baltimore, chairman of the U.S. bishops’ Ad Hoc Committee for Religious Liberty, and Bishop Richard Malone of Buffalo, N.Y., chairman of the bishops’ Committee on Laity, Marriage, Family Life and Youth, highlighted this problem in a press release opposing Executive Order 13672, which added “gender identity” to the list of protected classes in federal contracting:
“The executive order prohibits ‘gender identity’ discrimination, a prohibition that is previously unknown at the federal level and that is predicated on the false idea that ‘gender’ is nothing more than a social construct or psychological reality that can be chosen at variance from one’s biological sex. This is a problem not only of principle but of practice, as it will jeopardize the privacy and associational rights of both federal contractor employees and federal employees. For example, a biological male employee may be allowed to use the women’s restroom or locker room provided by the employer because the male employee identifies as a female.”
Faith-Based Organizations Must Exercise Caution
The U.S. Supreme Court will decide the Obgergefell marriage cases this week or next. If five justices invent a constitutional right to same-sex “marriage” and federal, state and municipal governments continue to add SOGI to their non-discrimination boilerplate, faith-based organizations will face a “clash of absolutes” in many more places:
Adoption and Foster Care: Massachusetts, Illinois and the District of Columbia were among the first jurisdictions to legalize same-sex unions. Shortly thereafter, Catholic Charities and Evangelical Child Family Agency were forced to discontinue long-standing adoption and foster-care programs because they sought to place children in households headed by a married mother and father.
Administrative Agencies: The federal Departments of Education, Labor, Justice, and the Equal Employment Opportunity Commission (“EEOC”) posit that the decades-old protected class “sex” includes “gender identity” protections under Titles IV, VII, and IX of the Civil Rights Act and have filed suit to enforce this interpretation. For example, the EEOC ruled that “transgender” and “gender identity” claims are cognizable under Title VII’s “sex” discrimination provisions in Macy v. Holder, then filed suit in Florida, Michigan, and Oklahoma on behalf of men who were terminated because they dressed and presented as women during their “transition.”
Counseling Services: LGBT activists have argued that religious counseling programs like Courage International, the apostolate that ministers to men and women with same-sex attractions and their families, are tantamount to “conversion therapy,” which is banned in California, New Jersey, Oregon and the District of Columbia.
Federal Contractors and Grantees: Executive Order 13672 adds SOGI protections to all federal contracts without express protections for religious staffing, while draft amendments to the Runaway Homeless Youth and Trafficking Prevention Act would push SOGI protections into the internal religious staffing of the grantee.
Religious Schools: Citing state SOGI laws, same-sex “married” employees have sued Catholic schools in California, Missouri and Washington, while “transitioning transgendered” employees sued Azusa Pacific University and California Baptist University.
As sexually revolutionized definitions of marriage, sexuality and sexual identity are mainstreamed and codified in the non-discrimination boilerplate, faith-based organizations cannot safely assume that their external contracts, grants or cooperative agreements honor their sincerely held religious beliefs. Church leaders must be “wise as serpents and simple as doves” (Matthew 10:16).
Matthew Kacsmaryk is the deputy general counselfor for the Liberty Institute in Dallas, Texas.
He previously served as an Assistant United States Attorney for the Northern District of Texas.