The Fight for Marriage: Church Conflicts and Courtroom Contests

The Fight for Marriage: Church Conflicts and Courtroom Contests

by Phillip F. Cramer, William L. Harbison

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Overview

For leaders in governments and in churches, marriage equality is the most contentious civil-rights dispute in the 21st century. During an era where nearly half of all marriages end in divorce, same-gender couples now have the federal civil right to marry, too. At a time when 62 percent of Americans approve of same-gender marriage, according to June 2017 Pew Research, churches are having to come to terms with whether to recognize and affirm these faithful partnerships as sacred covenants.

Attorneys Harbison and Cramer, faithful and active members of a United Methodist congregation, brought one of the cases to the US Supreme Court, which resulted in the 2015 landmark decision that permits persons of the same gender to marry. They bring a unique legal and cultural perspective to the controversy.

For the three couples Harbison and Cramer represented, marriage is not an "issue" to be resolved. Marriage is rather a sign for these couples of their faithful promise to love each other until they depart this life. "Each couple married for several reasons, including their commitment to love and support one another, to demonstrate their mutual commitment to their family, friends, and colleagues, and to show others that they should be treated as a family. They also married to make a legally binding mutual commitment, to join their resources together in a legal unit, and to be treated by others as a legal family unit, rather than as legally unrelated individuals. Finally, each couple married so that they could access the legal responsibilities of marriage to protect themselves and their families, just as heterosexual couples do." Aleta A. Trauger, Federal Judge

With a first-hand account of the respectful courtroom drama concerning marriage in American communities and states, Harbison and Cramer show why states care about marriage, why the church got involved in marriage more than a thousand years after Jesus's earthly ministry, and how the church and the state function in partnership to foster the purposes and social benefits of marriage.

From the Faultlines collection, resources intended to inform conversations around human sexuality and the church.

Product Details

ISBN-13: 9781501858949
Publisher: Abingdon Press
Publication date: 03/26/2018
Sold by: Barnes & Noble
Format: NOOK Book
File size: 1 MB

About the Author

Phillip Cramer specializes in plaintiff’s recovery cases and other litigation in the areas of antitrust, insurance coverage, false claims, property rights, and complex business disputes. He graduated with highest honors from the Vanderbilt University Law School. He represents clients in high profile civil rights cases, having brought cases to vindicate immigrant rights, women’s rights, voting rights, privacy rights, and marriage equality. Previously, Cramer worked as a trial attorney in the Honors Program of the Department of Justice, Antitrust Division. He is an active member of Nashville's Belmont United Methodist Church where he serves as chair of the Administrative Board.
William L. Harbison works in corporate law and with trusts and estates. He graduated cum laude from Harvard Law School. He served as President of the Tennessee Bar Association and Nashville Bar Association. He is a Member of the Tennessee Supreme Court Board of Law Examiners and a Fellow of the American Bar Foundation. He is selected by the Tennessee Supreme Court to serve on the Board of Professional Responsibility Advisory Committee. Harbison is an active member of Nashville's Belmont United Methodist Church.

Read an Excerpt

CHAPTER 1

THE POWER OF THE NARRATIVE

When a child is baptized in The United Methodist Church, the parents or sponsors of the child are asked to affirm whether they "accept the freedom and power God gives you to resist evil, injustice, and oppression in whatever forms they present themselves." What does it mean to accept the freedom and power given by God? What happens when injustice or oppression takes the form of the state? Or the church itself? And how does one "live according to the example of Christ" and serve Jesus Christ "in union with the Church" when the church itself is not unified?

This book traces our attempts to answer these questions in the context of marriage equality. The story is told from the perspective of two United Methodists — lay leaders and lawyers — who live in two coexisting and overlapping worlds: the church and the state. In those overlapping worlds we simultaneously represented same-gender couples seeking recognition of their marriages by the state, while working within our local congregation as it sought acceptance of LGBTQ persons in the eyes ofThe United Methodist Church. While the perspective is ours, the stories are not.

In our professional lives, we are charged to give voice to those who need to be heard within our legal system. While we do so within the technical and specialized environment that constitutes the American legal system, we are actually packaging the underlying narratives. And these narratives are the essence of what conveys truth.

In many ways, our professional lives are modeled after our faith tradition in which laws and principles are often more effectively conveyed by stories or parables than by edicts or pronouncements. While some principles can be expressed through simple commandants such as "thou shall not kill," other principles require narratives to explain and understand. Jesus frequently used parables to express deep and compelling truths. For example, one does not place a lamp under a bowl or build on ground without a foundation. And it is the smallest of all seeds, the mustard seed, that when planted becomes the largest of all garden plants. Or it is the one lost sheep that is found that creates more happiness than the ninety-nine sheep that did not wander off. And it is not just the stories told by Jesus but also the stories about Jesus that have been used within our faith tradition to express a way of life. For example, the story of Jesus casting out the demons from Legion conveyed significant political and social commentary on multiple levels that would have been readily understood at the time.

Our journey as storytellers is deeply rooted in our faith. A faith that compelled us to action and action that required our faith. It is a faith grounded in the kingdom of God, experienced right here and right now. This faith has confidence in both the church and the law. And it is a faith in and exercised through the power of the narrative.

Our interest in taking action against inequality is rooted in our own stories. Why would we want to take on a case about marriage? Lawyers are affected and changed by the cases they take and the life experiences that they encounter. The fact that marriage was available in Tennessee to opposite-gender couples, but not to same-gender couples, was, to us, unjust. Things from our past reminded us of that injustice and compelled us to act.

In the early 1980s, Bill worked on a dispute between Yale University in New Haven and Fisk University in Nashville about the ownership of the unpublished papers of Jean Toomer, a renowned author of the Harlem Renaissance. Jean Toomer's widow, Marjorie Content Toomer, lived in Doylestown, Pennsylvania, and Bill was sent to interview her about the case.

The nature of the dispute about Jean Toomer's papers is not relevant to what happened next. Bill arrived in Doylestown and rented a car, finding his way by maps to Marjorie Toomer's home in an old renovated barn just outside of town. The house was filled with original paintings, furniture, and the collections of an interesting life. Marjorie was in her eighties, and offered a drink of Jack Daniel's. Jean Toomer had died many years earlier. As Marjorie discussed her life and her intentions about his literary legacy, she brought out a New York newspaper clipping from the 1930s with this headline: "Miss Content Marries a Negro." The couple was legally allowed to marry in New York (although it drew this type of headline, even in that state), but that marriage would have been unlawful in Tennessee (and many other states) in the 1930s.

The memory of that headline remains as a reminder of how unfairly people are sometimes treated for reasons that have nothing to do with their basic human dignity or sacred worth. Of all the memories that Bill heard from Marjorie that day, over the course of several hours, this was one that she had preserved and wanted to show as an explanation of a portion of her life. She became a real friend that day. Bill and his wife, Patty, were expecting their first child, Jay, who was born later that year. Marjorie sent them a sweater for Jay that she had knitted by hand.

Phil was likewise profoundly affected by his own life experiences as a young attorney. Phil's daughter Caroline was celebrating her fourth birthday, which happened to fall on Martin Luther King Jr. Day. As he tucked his daughter into bed that evening, he read to her a children's book about MLK's boyhood. It had capped a day of remembrance and awareness that included a family ritual of watching King's "I Have a Dream" speech around the breakfast table.

When Phil finished reading the book to his daughter, he decided to use it as a parental teaching moment. He explained to his young child that injustice and inequality persisted to this day and she had a responsibility to take action. Before Phil could pat himself on the back for instilling this bit of parental wisdom, the teaching moment was turned on its head. His daughter looked him in the eyes and asked, innocently and sincerely as only young children can do, "Daddy, so what are you doing?" This question would ring in Phil's ears in the coming days, weeks, and months as he worked at our business law firm. And it would be a turning point for Phil to remember why he went to law school in the first place.

Years after these experiences, in late April 2015, we both were together in Washington, DC, for one of the most significant cases in which we could ever imagine to participate. Other members of our law firm, and other members of the legal team of which we were a part, were also in Washington that week. On Tuesday, April 28, 2015, the US Supreme Court would hear arguments in the case of Obergefell v. Hodges, a consolidated case that presented the court with questions about whether same-gender couples have the right to marry, and to have their marriages recognized in all fifty states. Our Tennessee case was part of that consolidated case.

That night, however, was a moment of calm before the big event in the Supreme Court. Legal briefs had been written and submitted, and preparation was nearing completion. The rest of our legal team had plans for the evening, and so the two of us walked from our hotel in search of a restaurant. We found a charming French restaurant a few blocks away that had an open table. It was a beautiful night, and we were seated on the restaurant's patio. At the next table, two other men sat together and the waiter was delivering their appetizers. Our table neighbors were friendly, and they made suggestions for us to consider ordering. They lived nearby, and were familiar with the menu.

A little further into the meal, they asked what brought us to Washington. We explained that we were lawyers from Tennessee, and that we were there for the Supreme Court case on marriage. Warily, they asked us which side we represented. When we told them that we represented the plaintiffs seeking legal recognition of their marriages, they beamed with pleasure and told us that they were themselves a committed couple. Our lives and stories were intersecting at a moment in time that was hugely significant for all of us.

How we reached that moment, and what happened after, has formed our perspective on marriage equality.

CHAPTER 2

THE MARCH TOWARD EQUALITY WITHIN MARRIAGE

Marriage is a unique creation. It is about love and loyalty. It is part contract and part covenant. It has the power to make life convenient while adding untold complexity, often simultaneously. It is expected by society yet historically made exclusive. And it is arguably the only institution in the United States that transcends both civil law and church doctrine.

That was not always the case. Under Roman law, marriage was a civil institution that included various types of partnership arrangements that evolved during the Roman Republic and the Roman Empire that followed. The types of marriage available to Roman citizens and subjects were typically dictated by the class of the individuals involved. Roman law dictated the rights of the spouses both during and after marriage; these rights were largely about property, especially for the more wealthy families during Roman times.

In the world in which Jesus was born, marriage was primarily an economic contract and social compact. And while for some marriage had roots in the Jewish faith, its purpose was viewed in largely secular and societal terms around order, property rights, and economic stability. Consider, for example, Proverbs 31, which is still used today as scripture at weddings. While the passage includes flowery language about a wife whose "husband praises her" and whose "children bless her," to young women of the day it read more like a job description of a virtuous wife.

Church and State

The relationship between the church and state with respect to marriage has been both complementary and antagonistic. For example, when Augustus ushered in the Roman Empire, civil marriage had fallen out of favor and Rome faced declining birth rates. Augustus sought to impose strict laws governing marriage requiring that all men between twenty-five and sixty years of age and all women between twenty and fifty were to marry and have children. Roman couples who declined to have children were taxed proportionally by their wealth. Those who engaged in adultery would be exiled, if they were not killed by either a father or husband. It was the early church that opposed such laws and had success in securing their repeal or lack of enforcement.

Indeed, many early Christian communities discouraged marriage because it distracted followers from the Way. Of course, they recognized that a community that solely promoted celibacy would not remain very long. Marriage began to receive more acceptance from early Christians after it was suggested by some that it was a sacrament; after all, why else would Jesus turn water into wine at a wedding? However, marriage would not become an official sacrament (a sign of divine grace) in the Catholic Church for more than a millennium.

As Christianity and Christian communities grew, the church found itself having to address the marriage practices of those who were being brought into the faith. For example, polygamy was practiced within many communities that converted to Christianity. The church did not prohibit clerical polygamy until the eighth century. During the centuries that followed, the church had an uneasy relationship with marriage, because it was used by the powerful and elite as both a saber and a sword, often with the church's complicity.

During the sixteenth century, the church (which now included both Catholics and Protestants) reexamined the sacramental nature of marriage. During the seventh session of the Council of Trent in 1547, sacramental marriage became part of Roman Catholic canon law. The adoption of sacramental marriage as part of the canon law was as much about recognizing the importance of marriage as it was an attempt to influence, if not dictate, centuries of civil law and customs over the practice of marriage.

An Unequal Union

Under both civil law and canonical law, marriage was historically an unequal arrangement. Males assumed the head of the household and females were often regarded as property instead of coequal partners. It was not uncommon under civil law for the property rights of the wife to be transferred from her family to her husband. It was the wife's duty to "obey" while the husband was obliged to "honor." For example, marriage vows from the mid-sixteenth century in the Church of England had the groom promising to "love, cherish, and worship" while the wife vowed to "love, cherish, and obey."

This understanding of marriage, with its inherent inequity of those in the relationship, continued for centuries and became part of civil law. In nineteenth-century America, the law insisted that marriage was a permanent relationship defined by the husband's authority and the wife's dependence. These laws governed property rights, obligation and right to support, legal ability to contract, and the inheritance rights of offspring. These laws have components of both earlier Roman civil law and religious doctrinal teachings.

One can trace the evolution and understanding of marriage from Roman civil law to church doctrinal law and then back to American civil law. An in-depth history of marriage is beyond the scope of this book; the important takeaway, however, is that the institution of marriage has looked different at different points in time, and the relationship between church and state with respect to marriage has been anything but static throughout the millennia.

Similarly, the reasons for marriage have evolved over time. Marriage has served as an instrument to combine and preserve power and wealth, especially among politically elevated families. On the opposite end of the spectrum, marriage offered stability and security facilitating the potential for economic advancement. And of course, marriage has served as a platform for the mutual expression of love and affection.

The institution of marriage has reflected the societies of the time while simultaneously shaping those societies. This symbiotic relationship has played itself out in American society over the past century. Perhaps the most fundamental change in American society over the past one hundred years has been the greater recognition and deeper understanding of individual rights. Races are no longer viewed as unequal. Women are no longer viewed as property. And all persons, regardless of sexual orientation, are recognized as having equal dignity.

These changes in our relationships and regard for the equal dignity of all persons has meant that while marriage remains a combination of two persons, the recognition of the rights of those persons within the marriage has evolved. While marriage continues to be a combination of two individuals, the opportunities to marry and the worth of those within the marriage are now equal.

Sacred and Equal Worth

Today, most Christian faith communities embrace the sacred worth of all persons, either as a tenet of faith or as a commandment. This expectation itself has evolved. While the Bible has numerous passages and parables preaching equality and love for all, other passages have been used throughout history to support separation and inequality, including the unequal treatment of women and minorities. Indeed, the Judeo-Christian tradition has an unfortunate and ugly history of using scripture to support separation, slavery, and submissiveness of groups based on skin color, skin disease, ethnic origin, or gender. However, during the past one hundred years, the church has, more often than not, been at the forefront of promoting equality, and most Christian faith communities today fully embrace the sacred worth of all individuals.

American civil law has likewise evolved to embrace a notion of equality for all. Like the church, the founding of the American experiment was a paradox of lofty statements about equality and human dignity undermined by discriminatory practices and laws. Races were separated and subjugated. Genders were categorized and casted. Although the phrase "Equal Justice Under Law" was carved in stone above the entrance of the Supreme Court building in Washington, DC, when it was completed in 1935, equality for all was still an elusive idea. Over the past 150 years, we have seen the abolishment of slavery, the elimination of Jim Crow laws, the enshrinement of equal protection in the US Constitution, the extension of universal suffrage, and the enactment of protections for women, minorities, the disabled, and the disenfranchised.

While both the church and civil law have moved toward embracing dignity for all, its leaders have not always been proactive in updating the institutions that they created or sponsored to incorporate such ideals. And therein lies the challenge. It is a process that has repeated itself from the founding of both the Christian church and the American state. Implementation of policy frequently lags behind proclamation of ideals. This delay and resistance is similar to the tension between faith and works. What does one tell us of the other, especially when what we profess and preach is not always represented by our actions? Is the resistance an indictment of our professed beliefs or actually failing to act as we believe? And given that both civil law and church law are distinctly human institutions subject to the will of those in power, they become a proxy for larger disagreements within society and faith communities.

(Continues…)



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Excerpted by permission of Abingdon Press.
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Table of Contents

1. The Power of the Narrative,
2. The March toward Equality within Marriage,
3. Together and Apart,
4. The Legal Prohibition,
5. The Spirit Stirs within Our Church,
6. Our Faith-Inspired Action,
7. A Faith-Based Narrative for Marriage Equality,
8. The Legal Case for Marriage Equality in Tennessee Begins,
9. Victory Followed by Disappointment,
10. The Case for Marriage Follows Us to Church,
11. Culmination of the Journey to the Supreme Court,
12. Culmination of Our Church's Journey,
13. Lessons from Church Conflict and Courtroom Contests,

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