Skip to main content

David Novak on state legislation and same-sex marriages

I have today been reading an article by David Novak, a Canadian Traditional Jew, professor, ethicist, lawyer, and Rabbi, on same-sex marriage and the role of state legislation. In it he revisits his previous dialogue with the Reform Jewish scholar Martha Nussbaum. Novak's basic position is conservative on the definition of marriage itself. Over against Nussbaum he rejects the idea that marriage is the wedding of two persons to one another - what he takes to be a modern development - and maintains the traditional account that it is specifically the wedding of a male and a female person to one another. The argument he makes does not rest primarily in theological considerations, but on questions about the legitimate role of state legislation with regard to the meaning of the term 'marriage'. Part of his argument consists in his locating the development of marriage within the formation of culture and not polity. Marriage is therefore pre-political in Novak's view, and so has a  raison d'etre of its own. He writes,
Since traditional marriage already has reasons of its own, the state should not supply new and different reasons for an institution it only inherited and did not itself create. Indeed, to supply radically new reasons for something old essentially transforms it by radically redefining it. As such, marriage so radically redefined loses any essential continuity with what previously has gone by the name "marriage."
The point is that the state cannot, in Novak's view, create or recreate the social practice of marriage. The name marriage applies to a particular kind of relationship between a man and a woman. Again, he writes,
Thus "marriage" did not become the name of the domestic union of a woman with a man because someone said, "Let there be marriage!" Instead, "marriage" became the name used to designate this already existing social relationship when it had to be distinguished from other social relationships that might look like it in some ways, yet are different from it in more essential ways.
As a kind of practical apologia for this position, Novak goes on to argue that the best public reason for marriage is procreation, and the furtherance of the human race. This can obviously only be acheived biologically by heterosexual couples (de minimis non curat lex). Futhermore, since this is biologically the case, Novak raises questions about the legitimacy in a same sex marriage of a man 'taking the place of the mother' or a woman 'taking the place of the father' as would be the case in a same-sex relationship.

Novak's position is a kind of defense of traditional marriage from nature (procreation) and from the tradition itself (the naming of a social practice). At one level it is a helpful and coherent argument that takes seriously the move in secular sociaty towards recognizing civil partnerships, but which rejects the idea that these partnerships are 'marriages', but on the other hand it makes a claim on the public practice of marriage and the reasons for it. In our, perhaps overly romanticized, world does this kind of argument from nature really carry the kind of weight that those who defend traditional marriage would like. For me the downfall of Novak's piece, and I suppose Nussbaum's (though I have read little of her work), is that it isn't theological enough - and doesn't ground marriage in a plausible anthropology.


Popular posts from this blog

What Do You Call a Group of Theologians?

I think the answer should be "an argument", but perhaps that's unfair. I can test my theory this next week, which sees the start of the annual Society for the Study of Theology (UK) conference on the theme of Holy Writ? (The question mark is very suggestive). It looks really good, and the list of plenary speakers is great: Alex Samely (Manchester); Morwenna Ludlow (Exeter); Henk van den Belt (Amsterdam); Walter Moberly (Durham); Anthony Thiselton (Nottingham); Hugh Pyper (Sheffield). The conference lasts several days and is convening this year at York University. I hope to be able to blog a few thoughts from the conference and some info about the plenary sessions, but I shall be presenting a paper at one of the themed seminars on Wednesday afternoon on the interpretation of Barth's ethics of responsibility so may be a bit distracted until then. So watch this space for more info...

Barth on defining the authority of scripture, and issues in the Anglican communion

Barth is notorious, particularly amongst evangelical scholars, for his view of the authority of scripture. He is right, I think, to argue that scripture's 'authority' is relative to the authority of Christ. This is precisely why his threefold definition of the Word does not privilege scripture, but acknowledges its principal witness to the 'wordiness' of Jesus (John 1 - a passage of which Barth was very fond). Where I think his approach to scripture becomes more complicated, and difficult to understand, is in passages relating to moral authority, such as this one: All biblical imperatives - and we do not say this to impugn the authority of the Bible but to define it - are addressed to others, and not to us, and they are addressed to others who differ greatly among themselves, to the people of Israel in different situations, to the disciples of Jesus, to the first Christian churches of Jews and Gentiles. Their concreteness is that of a specific then and there...This

Ascension, Mission, and Birth...

I'm preaching on Sunday morning following a period of reflection and feedback in our church: we are need of setting a vision for the next few years, a task we've probably not really done before, and are at the beginning of the process. For most people that will be a daunting experience: it's new, and new things often are daunting to well established congregations. My congregation will probably find it daunting. It requires us to wait on God, and to be open to things new as well as old. Yesterday's Ascension reading, Acts 1:1-11, captured some of what is required as I see it. Jesus told the disciples to wait on God for the Holy Spirit to come, to enable them to be witnesses in all the world. If ever there was a manifesto for what it means to be Church, I think that short passage is one of them. Many people think of Pentecost as the birthday of the Church, but I disagree: for me, the birth of the Church (and all the messiness that births often involve) was at Ascension