An Unfinished Synthesis

Arguments do not always wear their true purpose on their face, nor are courts required to take them at face value. Laws against miscegenation paraded in a religious and moral dress, but the Supreme Court ultimately held that they were nothing but a device to shore up “White Supremacy.” (Nussbaum 2008: 343-344)

As a language its [mathematics] ‘words’ are open to abuse just as the word ‘marriage’ was for nefarious purposes applied to mutual commitments between persons of the same sex which were perfectly adequately and unambiguously distinguished as civil partnerships. (Dave Taylor, 2/14/2018, RWER Blog)

There is nothing nefarious about same-sex marriage and equal protection under the law. To imply that someone is wicked or criminal simply because they are biologically born homosexual (or transsexual, etc.) and desire to exercise the same civil liberties as heterosexual couples reveals the homophobic animus of the speaker.

Today, large segments of the Christian Right openly practice a politics based upon disgust. Depicting the sexual practices of lesbians and, especially, of gay men as vile and revolting, they suggest that such practices contaminate and defile society, producing decay and degeneration…. The politics of disgust is profoundly at odds with the abstract idea of a society based on the equality of all citizens, in which all have a right to the equal protection of the laws. It says that the mere fact that you happen to make me want to vomit is reason enough for me to treat you as a social pariah, denying you some of your most basic entitlements as a citizen. (Nussbaum 2010, xiv)

A common spurious argument1 made by those who oppose same-sex marriage is that this would change “the accepted meaning of the word ‘marriage’ (Dave Taylor, 2/17/2018, RWER Blog),” which reveals more about their own ignorance of the Judeo-Christian tradition than anything about the historical meaning of marriage:

The Judeo-Christian tradition that supposedly undergirds … [such] beliefs does not support the idea of marriage as a changeless institution created by God in the beginning. The Old Testament patriarch Jacob had four wives. King David’s eight wives are named in the Bible, though he had many more. The book of I Kings describes the amorous King Solomon, who “loved many strange women, together with the daughter of Pharaoh, women of the Moabites, Ammonites, Edomites, Zidonians, and Hittites.” He took seven hundred wives and three hundred concubines. To be sure, these various marital structures were never same-sex, but only in that limited sense do they seem continuous with marriage as understood in the twenty-first century. In contemporary Western culture women are no longer property to be hoarded by kings or jealous tribal chiefs. Fathers do not barter their daughters to advance family fortunes. And nobody has hundreds of wives. Strangely, that historical context and the dramatic changes to marriage that Americans had adopted seemed lost on [the ignorant and uninformed], which continued to argue that gay marriage amounted to the first radical change in the history of the institution. (Randall and Giberson 2001: 134-135)

Both science and religion are evolving. What both developing science and religion need is more searching and fearless self-criticism; a greater awareness of their incompleteness in evolutionary status. The teachers of both science and religion are often altogether too self-confident and dogmatic. Science and religion can only be self-critical of their facts. The moment departure is made from the stage of facts, reason abdicates or else rapidly degenerates into a consort of false logic. While the religion of authority and dogma may present a feeling of settled security and certainty, neither the Father or Jesus requires as the price of entering the kingdom of heaven that we should force ourselves to subscribe to a belief in things which are spiritually repugnant, unholy, and untruthful. It is fundamentally inconsistent with the Golden Rule to practice, endorse, or otherwise support homophobia in all its forms. It is not required of us that our own sense of mercy, justice, and truth should be outraged by submission to an outworn system of religious beliefs, dogmas, and ceremonies. The religion of the spirit — living experiential truth, beauty, and goodness — leaves us forever free to follow the truth wherever the leadings of the spirit may take us. And who can judge—perhaps this spirit may have something to impart to the younger generation which other generations have refused to hear?

Tis a dangerous thing to ingage the authority of Scripture in disputes about the Natural World, in opposition to Reason, lest Time, which brings all things to light, should discover that to be false which we had made Scripture to assert. (Thomas Burnet, Archaelogiae Philosophicae, 1692)

Christianity (including a few other faith traditions) have struggled to come to terms with the fact of evolution and the modern findings of science regarding sexuality. Conservative Christians claim homosexuality is unnatural while science reveals homosexuality is a natural occurrence in nature (Rice 2013, Ridley 2003, Ruse 1994).  There is nothing at all scientific about homophobic rhetoric. It is religious bigotry grounded in ignorance which is either unware or refuses to honestly face the fact and truth that sexuality in nature is a biological phenomenon — and that includes sexual attraction. Each passing year scientists learn more about human sexuality and one of the findings of science is that sexual orientation is both grounded in biology and is not simply binary; rather it exists on a spectrum. One of the most salient findings emerging from the study of human sexuality is just how early children become aware of their gender orientation, which is not to be confused with their physical sex assigned at birth. Untold pain and suffering has been inflicted upon human beings because of religious bigotry and dogma. Both science and enlightened religious scholars today know this, and are speaking out. There is a Gender Revolution going on and the younger generation just won’t settle for anything less and that is good news indeed.

Christianity, in its many historical manifestations and theological adaptations has, like the people who that believe in it, a long history of both propagating social injustice and fostering social injustice. (Moon 2004, 1)

Religious intolerance comes in many forms and all too often is inculcated by the church at an early age. Fortunately, for many thoughtful religionists love trumps dogma yielding the true fruits of the spirit (Weeden 2008). When a religious tradition promotes sectarianism and dogmatism more than it promotes a loving and compassionate world enlightened religionists are concluding it is better to have a living religion that bears the fruits of the spirit without a church than a church without a living religion devoid of the fruits of the spirit (Leaves 2008). Jesus did not hesitate to appropriate the better half of a Scripture while he repudiated the lesser portion. His great exhortation, “Love your neighbor as yourself,” he took from the Scripture which reads: “You shall not take vengeance against the children of your people, but you shall love your neighbor as yourself.” Jesus appropriated the positive portion of this Scripture while rejecting the negative (Rogers 2009).

There are Constitutional reasons for questioning homophobic rhetoric as well:

Insofar as “separation of church and state” is a good idea, it is good because of the way it supports equal respect, preventing the public realm establishing a religious doctrine that denigrates or marginalizes some group of citizens…. Our [legal and juridical] tradition has sought to put religion in a place apart from government, in some ways and with some limits, not because we think that it has no importance for the conduct of our lives or the choices we make as citizens, but for a very different reason. Insofar as it is a good, defensible value, the separation of church and state is, fundamentally about equality, about the idea that no religion will be setup as the religion of our nation, an act that immediately makes outsiders unequal. Hence separation is also about protecting religionminority religion, whose liberties and equalities are always under pressure from the zeal of majorities. (Nussbaum 2008, 11-12)

Separate but equal is a sham argument masking a deeper animus. Fear, ignorance, and disgust are not good reasons to enact public policy that discriminates against minorities (Nussbaum 2008, 334-336).

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[1]. Historical context counts. It is easy to read our own misconceptions into the past based upon our own prejudices and preconceptions before we actually look at the historical evidence, which we will get to shortly.

Biblical scholars have grown increasingly aware of the importance of looking at texts not only in their historical or literary or social contexts but also in their cultural contexts. “Culture” includes those values, ways of relating and ways of looking at the world that its members share and that provide the framework for all communication. The readers of the New Testament shared certain values, such as honor, and codes of forming and maintaining relationships, such as patronage and kinship, and ways of ordering the world, expressed frequently in terms of purity. If we are to hear the texts correctly, we must apply ourselves to understand the culture out of which and to which they spoke…. This enterprise prevents potential misreading of the texts…. Without taking some care to recover the culture of the first-century Greco-Roman writers and addressees, we will simply read the texts from the perspective of our cultural norms and codes. Negatively, then, this task is essential as a check against or impositions of our own cultural, theological and social contexts onto the text. We should be concerned that we do not import into the text what is not there (and take those impositions as the word of God!). (deSilva 2000: 17)

Levirate Marriage:

In days before there were national welfare systems providing financial assistance, the tradition was that if a man died, his brother would assume responsibility for his widow and orphans by taking them into his own household (Dave Taylor, 2/18/2018, RWER Blog).

What such a silly assumption leaves out is that women were chattel and were legally dealt with by Hittite and Hebrew culture under the property laws. The Hebrews shared/inherited their levirate marriage laws from the Hittites, just as they borrowed Psalms from the Egyptians.

Women were first the property of their father, then their husband, and sons. The Jewish Study Bible describes levirate marriage customs in detail. The primary text follows:

When brothers dwell together and one of them dies and leaves no son, the wife of the deceased shall not be married to a stranger, outside the family. Her husband’s brother shall unite with her: he shall take her as his wife and perform the levir’s duty. The first son that she bears shall be accounted to the dead brother, that his name may not be blotted out in Israel. (Berlin et. al. 2004, Dt.25:5-6, 422-23)

The basis of the law was to protect the clans tribal property inheritance. If the widow married outside the clan they were denied land and property rights as the new husband took over legal rights over the women and all property of her deceased husband including her. Hence, incest was give a special case (levir’s duty) to keep the property safe as is made perfectly clear in the critical comments (n.5-10)

Levirate marriage. Biblical, Near Eastern, and Roman inheritance law assigned special responsibilities to the “husband’s brother” (vv. 5-7), for which Hebrew had a special term, “yavam” (cf. Latin “levir”). Should a man die, leaving his widow childless, his brother was expected to marry the widow, thereby continuing the deceased’s line (see variations of his law in Gen. 38.8; Ruth 4.5-6). 5: Stranger most likely refers to someone outside the larger clan. The widow’s marriage outside the clan would diminish the landholding of the clan and add it to her husband’s, affecting the original equitable division of land among the tribes (Josh. chs 13-21). Her husband’s brother shall unite with her: This requirement conflicts with the prohibition against incest with the sister-in-law (Lev. 18.16; 20.21). Possibly, as in the Hittite Laws, levirate marriage provided an exception to the normal prohibition of such relations; alternatively, the Holiness Collection’s incest laws, which seem to be later, are intended to prohibit the practice altogether. 6: The first son alone here counts to the brother; cf. Gen. 38.8; Ruth 4.5-6. The intent is to mitigate the injustice created by the institution of levirate marriage: The brother who complied with its requirements would effectively disinherit himself. 11-12: This law, like the preceding one, deals with threats to reproduction. (Berlin et. al. 2004, 25:5-6, 422-23)

Such ancient case law has more to do with honor and maintaining a man’s name and inheritance within the clan than any sentimental national welfare system:

Since a man’s name, according to ancient thought, was the bearer of his person, a father lived on in his son (Gen.48.15-16). As in the case of Tamar (Gen. ch. 38), the wife had the obligation to see that the duty of a husband’s brother (or levir) was performed. (Berlin et. al. 2004, n.5-10)

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The duty of levirate marriage (from the Latin levir, “brother-in-law”) was adopted not only to preserve the family name, but to keep the property intact (compare Num.27.1-11 n.). (Sandmel 1972, 208 (25:5-10))

Consider the irony that if they were so tender and caring with their women (property) why then did they so brutally (think honor killing) waste them in the next verse:

When men fight with one another, and the wife of the one draws near to rescue her husband from the hand of him who is beating him, and puts out her hand and seizes him by the private parts, then you shall cut off her hand; your eye shall have no pity. (Dt.25.11) (Berlin et. al. 2004, 246-247)

Let us not forget, the levir could reject with minor shame, while the women had no choice in the matter. The man could shirk his duty while the women did so subject to pain of death (honor killing) for shaming the family. Evolutionary religion is sentimental, not logical. Formerly man protected woman because she was his chattel, and she obeyed for the same reason. Now, woman is no longer regarded as property, and modernity has brought increasing personal choice for love to the core of the relationship.

The foolishness of viewing levirate marriage code through the sentimental lens of modernity stands in sober contrast with the marital guilt test of trial by ordeal recorded in the Torah. If a man suspected his wife of being untrue to him, he took her to the priest and stated his suspicions, after which the priest would prepare a concoction consisting of holy water and sweepings from the temple floor. After due ceremony, including threatening curses, the accused wife was made to drink the nasty potion. If she was guilty, “the water that causes the curse shall enter into her and become bitter, and her belly shall swell, and her thighs shall rot, and the woman shall be accursed among her people.” If, by any chance, any woman could quaff this filthy draught and not show symptoms of physical illness, she was acquitted of the charges made by her jealous husband (Num.5.11-31):

The ordeal, or more correctly, the trial of the suspected adulteress, is a means of allaying or confirming the fears of a husband that his wife was unfaithful. Marital infidelity by the women is a grave offense because it threatens the purity of the lineage. Adultery is defined as involving sexual contact between a married woman and a man other than her husband, and is a capital crime (Lev.20.10). (Since Israel was a polygynous society, sexual contact between a married man and unmarried women was not considered adultery, although it was not encouraged.) When conclusive evidence is lacking, judgment and subsequent punishment is left in the hands of the divine. Water ordeals of varying types are attested from the ancient Near East. In Babylonian Laws Hammurabi, §132, (18th century BCE), one method of determining the guilt or innocence of a suspected adulteress is the river ordeal, in which the women is thrown into the water and her fate is left to the river god. (Berlin et. al. 2004, 294-295)

These atrocious methods of crime detection were practiced by almost all the evolving tribes at one time or another. It is not to be wondered that the Hebrews and other semi-civilized tribes practiced such primitive techniques of justice administration three thousand years ago, but it is most amazing that thinking men would subsequently retain such a relic of barbarism within the pages of a collection of sacred writings. Reflective thinking should make it clear that no divine being ever gave mortal man such unfair instructions regarding the detection and adjudication of suspected marital unfaithfulness.