Yesterday’s announcement that under President Obama’s direction the pernicious Defense of Marriage Act will no longer be defended by the Justice department is a major victory for the GLBT community and its allies. Certainly there was no coherent way that Obama could in good conscience continue to use his office to send lawyers into the arena to defend a law he believes to be unconstitutional.
Yet in continuing to draw a distinction between marriage and civil unions, and accepting the later while demurring on the former for glbt couples, Obama is, I would argue, still clinging to an ethically and theologically problematic position. As is well known, Obama, in an interview with the Chicago Tribune during his presidential campaign defended this distinction on theological grounds:
"I'm a Christian. And so, although I try not to have my religious beliefs dominate or determine my political views on this issue, I do believe that tradition, and my religious beliefs say that marriage is something sanctified between a man and a woman."
On the surface the statement seems sensible enough, and clearly Obama has plenty of company among Christians and other religious folks across the political spectrum. And yet, to suggest that marriage and gender complementarity are necessarily tied together and that this is in fact the Christian position does not follow for a number of reasons.
First, Obama seemed not yet to have come to terms with the fact that there now exist in this country, and throughout the world, legally married, GLBT, Christian couples. One is tempted to respond to Obama’s blindness here by re-staging a famous (fictional?) dialogue: Q: So, do you believe in gay marriage? A: “Believe in it? Hell, I’ve seen it!’ That there are more and more GLBT Christian married couples whose religious beliefs are every bit as robust and perhaps even as orthodox as Obama's, simply exposes the precarious ground upon which the above distinction rests. Plenty of theology has been done by Christians, among other religious groups, articulating a defense of marriage inclusion that in no way undermines traditional theological claims, and in some cases even heightens and deepens our understanding of the theological tradition. If President Obama has not read, among many others, the works of James Allison, Eugene Rogers, Sarah Coakley, robustly Christian theologians all, one hopes that some of his religious advisors (Jim Wallis, maybe?) will encourage him to do so. He need not cling to this troublesome notion that being a Christian necessitates marriage discrimination.
Secondly, Obama’s invocation of gender complementarity as an essential aspect of marriage is increasingly hard to maintain. One might of course appeal to the rigorous arguments of queer theorists like Judith Butler showing that gender is not and has never been a straightforwardly binary structure without slippage. Furthermore, the Christian tradition is full of examples of what we might today call ‘gender-bending’, whether one looks, as Stephen Moore and others have done at the fascinating gender problematics of the Song of Songs, or of the tradition of the ‘manly eunuch’ in Matthew Kuefler’s brilliant work (The Manly Eunuch: Masculinity, Gender Ambiguity and Christian Ideology in Late Antiquity U. of Chicago Press, 2001). Recent critical scholarship has increasingly shown that the Christian tradition is not at one with itself on such matters as gender complementarity.
And yet one need not delve into these historical and theoretical intricacies to render problematic Obama’s reliance on gender complementarity. Even closer to the present, and perhaps especially relevant to readers of this blog, one has only to look at the increasingly tangled legal issues surrounding the marriage of transgendered couples, where attempts at fixing the gender of couples is a very difficult and puzzling legal matter. To take perhaps the most famous example: Texas, a state that does not recognize marriage between same-sex couples, has recently been forced to deal with this issue when El Paso County Attorney Anne Bernal asked Texas Attorney General Greg Abbott to render a ruling on whether she should issue a marriage license to Sabrina Hill and her female partner. Hill, born a man in the state of NY but, following gender re-assignment therapy now holding a Washington state birth certificate as a woman, upends the neatness of Texan law. On the face of it, to issue the license would appear to grant a marriage license to a same-sex couple, which Texas does not allow. However, at the time Texas did not recognize the legal right to change one’s gender, and so Hill’s original birth certificate as a man would seem to require Ms. Bernal to issue the marriage license. One can see immediately the tangled legal, ethical, and even biological thickets into which this case necessarily leads. At what level is gender determined: chromosomal, anatomical, cultural-performative? There are no easy answers here, unless, I suppose, one simply refuses to grant marriage licenses to transgender couples of any sort, though this seems a rather far-fetched solution. I wonder whether cases like Sabrina Hill’s will be dismissed as ‘outlier’ cases irrelevant to legal reasoning and here I would be very interested to hear what our legal scholars at Religious Left Law think!
My own, theological view is that Sabrina Hill’s case highlights the very dubious grounds for maintaining a rigid gender complementarity as theologically normative. I am heartened here by the work of theologian Cameron Partridge, a transgendered Episcopal chaplain at Harvard and a patristics scholar whose work is on the cutting edge of exploring resources within the Christian tradition for re-thinking gender within a Trinitarian, robustly Christian framework.
Obama's decision yesterday is a victory to be celebrated even as there is a great deal more work to be done. There is reason to hope that his position on marriage equality is evolving, and one hopes he will listen attentively to these Christian and other religious voices from the left in his own theological discernment.