As I said last week, philosophical nihilism banishes from our thinking metaphysical essences or non-empirical realities. To appreciate what this means and the degree to which that has affected our present-day thinking, we are going to take a brief journey through time to see how law has understood the nature of the marital relationship. I think you will find shocking, as I did, the transition from what we now believe to what we believed less than 200 years ago.
A High-level Overview of the Journey We’ll Trace
Our Starting Point
We will begin our journey with Obergefell v. Hodges. It was decided by the U.S. Supreme Court on June 26, 2015. It addressed the nature of the marital relationship.
To appreciate that decision, you will need to recall what I wrote last week, namely, that today’s climate of opinion is philosophical nihilism. It says there is no transcendent, given meaning to anything. Instead, the cosmos consists of bits of data that we organize and, by our words, we give that data its meaning.
Therefore, "marriage” is now just a placeholder word awaiting redefinition as it suits the prevailing climate of opinion from one age to the next. Given that, it should not have been too surprising that the Court held that states cannot deny two people of the same sex a marriage license.
This did not add to the law, but purported to change the definition of marriage in law for everyone! There is no marriage license defined exclusively as male-and female for the Christian couple to get or for a Christian minister to sign.
Our Destination
We will end our descent from philosophical nihilism by ascending to a belief held less than 200 years ago that we live in a fully integrated cosmos of God-given meaning. Upon arrival we will see that the integration point for the cosmos and for law was very specifically the revelation of the Triune God in the person of Jesus Christ.
Put another way, we will see that a Christian view of law did not rest simply on a belief in God as a Creator. That would have been more akin to Enlightenment thinkers. As Carl Becker wrote in The Heavenly City of the Eighteenth-Century Philosophers, Enlightenment thinkers’ “minds were too accustomed to a stable society with fixed ranks” for God to “be dispensed with altogether.” But, [h]aving performed his essential function of creation, it was proper for him to withdraw from the affairs of men . . . .”
Interestingly, in my experience, few Christians lawyers today find any use for the Triune nature of God in their thinking about law. I understand; that was true of me until about eight years ago.
The Height of Arrogance: Obergefell’s Understanding of the Marital Relation’s Importance
For the sake of understanding the influence on the brain of the philosophical nihilism we’ve been breathing in, consider this statement from Obergefell:
In Maynard v. Hill, 125 U.S. 190, 211, 8 S.Ct. 723, 31 L.Ed. 654 (1888), the Court echoed de Tocqueville, explaining that marriage is '“the foundation of the family and of society, without which there would be neither civilization nor progress.” Marriage, the Maynard Court said, has long been "‘a great public institution, giving character to our whole civil polity.’” Id., at 213, 8 S.Ct. 723. This idea has been reiterated even as the institution has evolved in substantial ways over time, superseding rules related to parental consent, gender, and race once thought by many to be essential. . . . (emphasis supplied)
We can add to this pagan statement from Obergefell:
The States have contributed to the fundamental character of the marriage right by placing that institution at the center of so many facets of the legal and social order. (emphasis supplied).
Isn’t it good to know that states helped make the marital relationship fundamental to what would otherwise be an unintegrated social order by what they did? Why, states were so enamored with the relationship that they chose to “place” it “at the center of so many facets of the legal and social order.”
It would never cross the mind of the nihilistic-thinking majority of practical atheists on the Court that the marital institution is “at the center” of the “social order” because God “placed” it there. It would never cross their mind that the institution was “at the center” because it was the crowning achievement of His creation.
Perhaps some of the dissenting justices thought it was put there by God, but that part can’t be said out loud anymore. Nevertheless, a Christian view of law would know the marital relation is not to be trivialized in law.
Unlike the Court’s majority, Christians understand that the marital relation is a union of a metaphysical nature giving rise to an unseen “one flesh” that in the created order reveals most perfectly the unseen loving nature of the Triune God. They understand it pictures that love for us as Christ being a groom and those who the Father “hast given” Him being His bride. (See John 17:9, 11, 24).*
Moreover, the Father’s love toward the Son is His giving to Him give all creation, including especially those made in God’s image, as His inheritance; the Son’s reciprocal love to the Father is restore the gift that was broken; and return it restored to the Father (See e.g., Colossians 1:16, 20; Psalm 2:8; Acts 3:21; Romans 11:36; 1 Corinthians 15:21-28)
Descending From Obergefell Up Toward God: Maynard v. Hill (1888)
As an intermediate stop toward our final destination, let me offer as a contrast to Obergefell the words that immediately preceded its contextually-divorced quotation from Maynard :
It is something more than a mere contract. The consent of the parties is of course essential to its existence, but when the contract to marry is executed by the marriage, a relation between the parties is created which they cannot change. Other contracts may be modified, restricted, or enlarged, or entirely released upon the consent of the parties. Not so with marriage. The relation once formed, the law steps in and holds the parties to various obligations and liabilities. (emphasis supplied)
Something is “created” that is not just a contractual relation. That sounds a bit to me like the two shall become one flesh, a new metaphysical reality. Obviously, the Obergefell Court would not want to quote this language from Maynard.
The Maynard opinion also quotes a number of state Supreme Court decisions that are illuminating. Here is one from an 1856 decision by the Supreme Court of Rhode Island, Ditson v. Ditson:
“[M]arriage” . . . is not a contract, but one of the domestic relations. . . . [I]t signifies the relation of husband and wife, deriving both its rights and duties from a source higher than any contract of which the parties are capable, and as to these uncontrollable by any contract which they can make. When formed, this relation is no more a contract than `fatherhood' or `sonship' is a contract.” (emphasis supplied)
No one would have said the father-son relation is contractual, and marriage was seen as having a similar essential nature, that is, a metaphysical nature.
The U.S. Supreme Court (and those of the states) knew the marital relationship was not a matter of mere convention, of contract. It had a “higher” source for its relation, and the “law steps in” simply to hold the parties to their promises, not issue them a “permit” to make them.
Yet, none of these precedents and others before them for centuries were offered to the U.S. Supreme Court in Obergefell as those it had either to explain, distinguish, or overrule before redefining the nature of the relationship. Why might that be?
Philosophical nihilism tells the Christian lawyer to look only at the Court’s most recent precedents because its speaking is part of our remaking the world. And that is what I once did, and what most still do.
Descending from Maynard Up To Christ in the Law
Our descent from Obergefell to that higher place in which Christ was considered the integrating point for all things, including the law, will end with Robert Haldane’s three volume Commentary on Romans. It was published during the period from 1835 to 1839. In relation to marriage, we find two pertinent statements about the essential (metaphysical) nature of the relation between husband and wife and law:
First, in his exposition on Romans 1:3 (“Concerning His Son Jesus Christ our Lord, which has made of the seed of David according to the flesh”), he writes:
On whatever subject Paul treats, he constantly introduces the mystery of Christ. . . . The reciprocal duties of husband and wife are enforced [by the law] by the consideration of the love of Christ, and the relation in which He stands to His Church.** (emphasis supplied)
That explains why the relation of husband and wife is “uncontrollable by any contract which they can make.” Maynard v. Hill, quoting the Rhode Island Supreme Court’s decision.
Though the Rhode Island Supreme Court had dropped any theological language as justification for the relation, it still knew that a husband’s and wife’s rights and duties are “deriv[ed] from a source higher than any contract of which the parties are capable.”
Second, in his exposition on the words “in Christ” in Romans 8:1, Haldane applies Christ to a specific issue of debtor-creditor law:
This union [with Christ] was typified under the law in the person of the high priest, who carried on his breast the twelve stones, on which were engraved the names of the twelve tribes of the children of Israel; so that, when he appeared before God, all the people appeared in him, thus showing that all believers are before God in Jesus Christ, their great High Priest. They are all delivered from condemnation, as being one body with Christ. As the debts of a wife must be discharged by her husband, and as, by her marriage, all her previous obligations are at once transferred to him, so the believer, being married to Christ, is no longer exposed to the curse of the law. All its demands have been met and satisfied by His covenant Head, with whom, as the wife is one with the husband, so he is one
This, I submit, is a Christian view of law as applied to a legal matter.
It is Christian because it (1) reflects the metaphysic that law is (a being word) spiritual (Romans 7:14), telling us something about the revelation of God we have in Christ, and (2) is consistent with the “secret” to a Christian cosmology: It is covenantal (Psalm 25:14) and informed by God’s law.
In sum, law obliged the man to pay the debts of his betrothed upon marriage and, during the marriage, those incurred by his wife. It was loving her as Christ loved the church. It was seen as honoring rather than diminishing her humanity.
Today it would be seen as debasing the non-covenantal economic unit the modern woman strove to become.
What Shall We Now Do?
If Christians, particularly the ministers and legal and policy advocates among them, had a Christian view of law and saw the glory of God in Christ resident in the marital relation, I think they would have done something to try to rectify Obergefell over the 10 years since it was decided. They didn’t.
But now, I think, would be a good time for all to repent and proceed with a way to apply a Christian view of law to the martial relation for the glory of God in Christ.
It’s not too late. The blueprint for proceeding is still at godgivenmarriage.com.
Who will God raise up to use it?
*That’s why a minister addresses a Father with “Who is giving the bride to the groom to be his bride?”
**The relation of husband and wife also helps us understand our relation to the law of God. When speaking of the covenant law relation as delivered to Moses, Paul referred to the law as a husband to which God’s people were married. See Romans 7:1-4. But that the nature of that relation law is, like the husband in those verses, “dead” in Christ so we can be “married to another” husband. Thus, we are “now”“under the law to Christ” as our husband (1 Corinthians 9:21, KJV). We remain always a Bride, but now Jesus, not Moses, is our husband!
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