A Theological-Legal Reflection on Conduct and Status

Many religious commentators on the CLS v. Martinez case are upset by the majority’s rejection of the argument that discrimination based on conduct differs from discrimination based on status. Some religious conservatives are keen to promote such a distinction because it would help immunize discrimination based on sexual conduct from strict constitutional scrutiny. For example, a church that refuses to hire people who practice a homosexual lifestyle – in other words, homosexuals who have sex – would not necessarily be discriminating against homosexuals as a class of people, particularly if the church is willing to hire people with homosexual inclinations who remain celibate.

The notion that a person’s internal inclinations and external actions can so easily be separated grates hard against the identity politics that underwrite our culture war debates. At some point, of course, nearly everyone agrees that certain inclinations must be stifled – such as the pedophile’s urge to sexualize children. But beyond extreme cases in which grave harm is inflicted on unwilling third parties, our majority culture’s highest possible value is the freedom of each individual to realize and actualize his or her own inclinations (or in law-review friendly language, to increase social welfare through the maximization of individual utilities and the minimization of externalities).

In a liberal, pluralistic democracy, it seems hard to suggest any other meaningful rule. If “life, liberty and the pursuit of happiness” are “inalienable rights,” and if the core purpose of our polis is the preservation of those rights, conduct-status distinctions must be anathema. A person is not free to pursue his libertarian happiness if he is restrained from acting in ways that would satisfy his inclinations without harming innocent third parties. When restraints must be imposed to protect the freedoms of others, these are cases of externality costs, not cases in which the utility of an inclination can be separated from the utility of the conduct produced by the inclination. Because the proper balance of utilities cannot be determined exhaustively ex ante, the best approach is to agree on a broad social contract framework for resolving disputes. Or so the neo-Rawlsian story goes.

From the viewpoint of Christian theology, this sort of libertarian theory is idolatry. The true telos of life is not to actualize one’s self by maximizing one’s own utilities. Rather, the goal of the good life is to become united with Christ. This involves the loss of one’s old self, with its inexorable inclinations toward sin and violence, and in its place the resurrection of a “new creation,” in joyful fellowship with God, with God’s creation, and with the community of God’s people, sharing in some mysterious measure in the perichoretic fellowship of the Father, Son and Holy Spirit. The libertarian self dies so that the self created by God for happy communion may live.

This is why the Bible draws no artificial distinction between what we do with our bodies and the state of our inner selves. In fact, much of the New Testament’s epistolary literature deals with the Gnostic heresy of that the body is an illusion. The early Gnostic sects tended towards either harsh asceticism or sexual license, because, for them, only the “spiritual” or inner plane really mattered. The Bible, and particularly St. Paul, will have none of this kind of dualism:

Do you not know that your bodies are members of Christ himself? Shall I then take the members of Christ and unite them with a prostitute? Never! Do you not know that he who unites himself with a prostitute is one with her in body? For it is said, “The two will become one flesh.” But he who unites himself with the Lord is one with him in spirit.

Flee from sexual immorality. All other sins a man commits are outside his body, but he who sins sexually sins against his own body. 19Do you not know that your body is a temple of the Holy Spirit, who is in you, whom you have received from God? You are not your own; you were bought at a price. Therefore honor God with your body. (1 Cor. 6:12-20).

For Christian anthropology, the inner and outer “self” is an integrated whole. There can be no sharp distinction between “inclinations” and “conduct.” A Constitutional standard that would distinguish “conduct” and “status” is foreign to a Christian view of the human person.

In this light, it seems surprising that so many of the Christian lawyers and organizations involved in the CLS v. Martinez case vigorously argued for a conduct / status distinction.  I’m tempted to mitigate my surprise with a cynical nod towards the expediencies of litigation. If you want to “win” in the Supreme Court, a robust Pauline anthropology won’t do. The Court might, however, understand a legalistic approach to “religion,” under which communities are constructed through adherence to somewhat arbitrary rules.

Perhaps this argument is plausible: “religion” essentially is about external compliance, not internal transformation and the resurrection of the whole person. That is at least one possible sociological definition of “religion,” and it might be important to carve out spaces for people whose life plans intersect with communities that impose such rules.

Another potentially robust, if maybe still a bit cynical, explanation is that the Christian groups advocating an inclination / conduct distinction don’t want to be seen as illiberal. If the CLS excludes people engaged in homosexual activity from membership, it is not because the CLS is “anti-gay”; it is only a certain kind of conduct, not the person’s inner self, which is in question.  But all this is sophistry. Indeed, there were “teachers of the law” in Jesus’ day who took a similar view. According to Jesus, these lawyers were no better than “whitewashed tombs” (Matt. 23:27).

The truth is that all Christian organizations that exclude people from membership based on homosexual behavior are “anti-gay,” insofar as “gay” is a definition of identity linked to a person’s deep inclinations. For that matter, Christian organizations can and often should be “anti-heterosexual,” “anti-business,” “anti-capitalist,” “anti-family,” “anti-life,” and so on, insofar as any of these categories of desire take the place of God. Just ask the one after whom the Christian faith is named: “If anyone comes to me and does not hate his father and mother, his wife and children, his brothers and sisters—yes, even his own life—he cannot be my disciple.” (Luke 14:26).

Of course, they way I’ve framed the question is problematic, because the posture of a Christian community shouldn’t be “anti” anything unless we first understand that “love,” particularly the love of God revealed in Christ, is everything. We are all about becoming united with God in love through Christ, in anticipation of the day when “God may be all in all.” (1 Cor. 15:28). It is love that excludes certain inclinations, desires, and conduct. Love compels us to order our desires and our conduct so that God’s community of shalom can be established. Love burns away all that which tends to dissolve this community: misplaced desire and misdirected conduct, all of a piece.

Christian communities are first and above all pro-love. “God is love” (1 John 4:8), and love, we recognize, is always a gift, freely given, freely received. God is the giver and we only respond. We love God only because He first loved us, and not because we deserve it. Indeed, until we are finally united with Him, our inclinations and desires continually tend towards selfishness and idolatry. We resonate with St. Paul’s agonized cry: “What a wretched man I am! Who will rescue me from this body of death?” (Rom. 7:24). We agree with Paul that we are rescued only in Jesus Christ.

It is because Christian communities are pro-love and pro-gift that we should always welcome gay people — along with all other strangers, all other aliens, all other outcasts — to fellowship with us. Yet, it is also because we are pro-love and pro-gift that Christian communities must establish standards of conduct that discipline the life of the community such that desire is continually directed towards the highest good, which is God and the peace God establishes.

Christians have historically understood sexuality in the context of a sacramental marriage commitment between one man and one woman, with the attendant possibility of new life in childbirth, because this reflects, we believe, something about the difference-and-coinherence of the persons of the Triune God Himself, as well as something about the gift of creation arising from the perichoretic joy known by God and instantiated in creation into that which is other than God. We understand sexual intercourse outside of the context of sacramental marriage to represent not only the violation of some external rule, but also a grave breach in the internal fibers of the community God is building. It is not out of animus for the person who is having sex outside of sacramental marriage that we might restrict the person’s role in the community. It is out of love, both for the person and for the community, and out of a great and overwhelming desire to see God’s peace realized for all.

The proposal that inclinations and conduct can be viewed in isolation, then, is exposed as empty and loveless. It reflects the sort of anthropological dualism towards which our neo-gnostic libertarian culture gravitates. This compromise should be resisted by the community called by the name of the Triune God revealed in Jesus Christ. Let us instead develop the courage to become an alternative community even when our distinctive witness forecloses access to the benefits of the libertarian secular state. We may, as good citizens in the earthly city, lawfully petition for the benefits of that citizenship, but let us do so without resort to legal theories rooted in a vision of the human person and the human community that falls so far short of what we believe is true and good.