Pondering Conscience
Civil Disobedience in American Law
and Same-Sex Dissent in the ELCA
Marie Failinger

The conflict over marriage rights for gay and lesbian couples seems destined to be one of the key defining fault lines for both the mainline Christian churches and American government in this early part of the twenty-first century. Despite pleas from church leaders, including Mark Hanson, much of the polity of mainline Protestant churches, including the ELCA, the Episcopal Church USA, the United Methodist Church, and others have been sharply divided over the issue.

The issue of same-sex marriage remains both contentious and politically important. Same-sex marriage proponents recently achieved legislative or court victories in Massachusetts and in New Jersey, which in December 2006 joined Connecticut and Vermont in recognizing civil unions. However, these proponents suffered defeats in seven other state elections, where voters adopted state constitutional bans against same-sex marriage, as well as civil union equivalents” in some states. The legislative and court battles in the states on this issue are far from over. In Massachusetts, Gov. Mitt Romney has asked voters to override the legislatures decision not to act on a same-sex marriage ban, while Californias high court has agreed to hear a lower court decision upholding such a ban.

The fact that there are now two different sets of marriage laws in the United States, and that many other traditionally Christian countries from Spain to Canada now recognize same-sex unions, poses two difficult questions for mainline Protestant churches. First, these denominations will have to decide how they should respond to legally married same-sex couples as well as those joined in civil unions. Even if voters ultimately overturn court decisions or laws recognizing same-sex relationships, many same-sex couples already will be married or joined in civil unions, and there would be serious constitutional problems with invalidating already legally recognized relationships.

Lutherans, along with other Reformation churches, traditionally have insisted that marriage is not a sacramental institution but an ordering of the left-hand governance” to be defined and regulated by the state. In many states, legally married or joined gay and lesbian members can now make a more plausible claim that their marriages should be blessed by the church. The fact that they are legally joined would seem to shift the burden to opponents to argue why the states marriage law is so fundamentally contrary to the Word of God that the church should refuse to recognize the states authority to join these couples. Of course, the distinction between marriage and civil unions might play a role in such arguments, though it is not yet clear why it would for Reformation churches that traditionally have left the definition of marriage to the secular authorities. Moreover, the mainline ban on ordination of gay and lesbian pastors in non-marital intimate relationships rests in part on the argument that they are a stumbling block” or scandal to other believers. That argument loses some of its force if gay and lesbian pastors, duly married or joined in civil unions, live in chaste and faithful relationships.

Conversely, the success of state constitutional bans and court cases turning back claims of same-sex marriage proponents in other jurisdictions poses perhaps an even more difficult dilemma that will be the focus of this essay: How should Reformation churches like the ELCA respond to faithful dissenters” who argue, in conscience, that their congregations must recognize and bless legally unrecognized same-sex unions, or call gay and lesbian ministers in committed relationships? Though American churches increasingly have looked to American legal models to govern the life of the church, I will suggest that the current American constitutional model for responding to conscientious dissenters” is a very inapt model for Lutheran churches struggling with these issues, because it does not take seriously Lutheran understandings of the relationship between the state, the conscience, and the believer. In particular, American constitutional doctrine on religious dissenters does not accept four Lutheran” community responsibilities: to acknowledge the dissenter, to submit ourselves to the lordship of Christ, to adopt the Other as a sister or brother in Christ, and to risk on behalf of the neighbor. Indeed, were I a member of the Supreme Court, I might suggest that the Court has something to learn from Lutheran teachings about how it treats religious dissenters, even though religious and legal models for responding to dissent would surely look different, given the different roles these orders” play.

Dissent in the Church

It is tempting to borrow from American constitutional doctrine to think about religious dissenters in the church, especially given the increasing turn in the ELCA toward a political model in the resolution of theological disputes. Following the distinction employed by University of Chicago law professor Cass Sunstein and others in the legal academy, the ELCAs decision making process often appears, at least from the outside, to resemble a pluralist or democratic” process in which like-minded persons achieve victory for their interests or views of churchwide policy by forming coalitions and lobbying for a majority vote for their position in congregational, synodical, and church-wide assemblies. Examples of the adoption of the American political and legal model in ELCA decision-making include the convention floor protest over the anti-same-sex blessing position at the 2005 ELCA Churchwide Assembly, reminiscent of 1960s American political protests and ELCA disciplinary processes that strongly resemble the American secular due process” model employed in criminal prosecutions and civil deprivations of public benefits.

Sunstein contrasts the pluralist or democratic” governance model with a republican” style of governance, in which decision-makers set aside their own agendas and come together to reason about the common good. While the republican” model has been encouraged by drafters of the ELCAs sexuality studies, it is far from clear that ELCA congregations and political alliances on either side of the issue are willing to commit themselves to having it decided through a shared process of reasoning and prayer in which participants trust that God will participate with them in discerning Gods will for the world.

Perhaps it is not such a surprise that American democratic processes have so thoroughly influenced the church. While there are many ways in which one could still distinguish American democracy from Lutheran and other Reformation church polities, it is possible to overstate this difference. For example, it is not true that the ELCA is the kind of theologically homogeneous body of believers that would make a republican” model work easily. This reality struck home when I was reading my local newspapers spotlight on one believer, who told the reporter that he believed if he were a good person in this life, he would go to heaven. His congregation was Lutheran. In both ethnically Lutheran communities and those where Lutheran congregations are growing quickly, many congregants will live their daily lives using theologies markedly different from core Lutheran doctrines on grace and works, the two kingdoms, natural law, or Scriptural interpretation, foundational ideas that are key to determining ones position on same-sex marriage. Their views and votes are likely to be informed as much by upbringing and social and political beliefs as by theology.

In such an increasingly American” church body, characterized by religious and theological diversity and borrowing from American political and legal norms in church governance, it is important to ask whether the American model” of protecting dissenters through constitutional judicial review is instructive for the church in the blessing and rostering” controversy.

Dissent in the American Constitutional Tradition

In describing such an American model,” it is certainly difficult to categorize the wide variety of court cases that have arisen under the First Amendments Free Exercise Clause, the predominant American vehicle for protecting dissenting religious minorities. However, at least two streams of conscientious objection to mainstream political decisions emerge. One category of Free Exercise cases involves traditional civil disobedience: in these cases, religious claimants attempt to raise the consciousness” of the wider culture about a perverse systemic flaw in American political or social life that, in those disobedients’ view, threatens the moral structure of American society. In the past half-century, the paradigm for these traditional disobedience cases before the federal courts is derived from the claims of pacifists like Elliot Welsh that war is fundamentally wrong, or selective pacifists like the Catholic Guy Porter Gillette who refuse to participate in unjust wars. They have been joined by other resisters who have hammered silos or sat in government buildings or poured blood on government documents to protest American acquisition of nuclear weapons or complicity in unjust military actions in places like El Salvador. The 1980s Sanctuary movement that smuggled Salvadoran and Guatemalan refugees into the U.S., revived today in humanitarian efforts by groups like No More Deaths on the Arizona-Mexico border, is a similar form of Free Exercise civil disobedience cases. Indeed, some of the Courts recent Establishment Clause cases are essentially minority religious protests against the encroachment of majoritarian Christian religion on public life. Deborah Weismans protest against school-sponsored prayer at graduation, Daniel Donnellys attack on Pawtuckets Christmas display, and Michael Newdows challenge to the under God” language in the Pledge of Allegiance are some examples.

A second, much larger set of Free Exercise cases might be termed, for lack of a better word, “governing indifference” cases. In these cases, religious minorities ask the courts for protection against the governments failure to notice that religious minorities’ spiritual practices are different from those of mainstream Christians or secularists, or sometimes, to welcome and accommodate those differences. For example, traditional Sunday closing laws or unemployment compensation laws expecting workers to be available on Saturdays reflected the majoritys obliviousness to the fact that Jews and Sabbatarians rest and worship on Saturdays. Yet, even when minorities pointed out the burden of these laws on their worship and rest obligations, many states were reluctant to change their rules to permit these minorities to meet their religious obligations. Jews have  the same struggle with military uniform requirements and meat slaughtering regulations, while Native American church members fought a long and only partially successful battle to protect their right to partake of their sacrament, peyote. The Amish and many conservative Christians who have asked for waivers from compulsory public school requirements similarly have had to turn to the courts to protect their right to educate their children as their conscience demands.

Acknowledging Dissent in the Church

Same-sex blessing and rosteringadvocates in the ELCA make both civil disobedienceand governing indifferencearguments to the church. At a most fundamental level, gay and lesbian members of the church are asking other members to notice and then welcome their difference, rather than ignoring or trying to hide the sexual diversity in their congregations. They protest that, when their sexual difference comes out into the open, the church is expressing indifference to the great loneliness and pain it asks them to suffer in order to meet its demand that they refrain from sexually intimate, loving, and faithful relationship with another person.

But in essence, “blessing and rosteringdissenters are also making moral claims against the fundamental presumptions of the Church community about which human beings and relationships are worthy. Although they sometimes dress up these claims in the inapt (in my view) language of rights and autonomy, at bottom these dissenters are rebuking the church for not taking seriously the fact that God has made them too in His image, that they are a good creation even down to the way in which their sexuality is bestowed on them. Moreover, in Lutheran terms, they essentially contend that their own efforts to live out of grace on behalf of the neighbor, including in intimate relationships, are not only disrespected but treated as a leprous sore upon the church and society.

Just as peace protesters rail at how the U.S. uses war to claim political and moral superiority and advance American economic self-interest, so blessing and rosteringadvocates essentially argue that the church elevates heterosexuals and their nuclear family relationships as morally and religiously superior to all other forms of neighbor-love.

However, “blessing and rostering” dissenters should not be quick to turn to an American democratic model for relief. The Supreme Courts modern response to both conscientious objectionor indifferenceclaims by religious minorities leaves much to be desired as a model for Lutheran Christians. At least since 1990, when Employment Division v. Smith was decided, the Court essentially has affirmed the legal right of the political majority to be completely indifferent to the needs of religious minorities. In the Smith and the Church of Lukumi Babalu Aye cases, while the Court signaled that it was willing to protect religious minorities hostilely targeted for their faith under the Free Exercise Clause, it acknowledged the right of democratic polities to pass neutral and generally applicablelaws that make it difficult or impossible for religious minorities to practice their beliefs. Thus, religious minorities have to seek help from state or local legislatures to protect their forms of worship as well as their daily religious obligations. These constitutional decisions, which purport to protect majoritarian democracy, simply encourage democratic majorities to slide back into their old habits of ignoring religious difference.

Lutheran theology, it seems to me, asks for quite the converse from church communities. The first moment in Lutheran communities’ response to conscientious dissent should surely be to acknowledge both the dissent and the dissenter in a way that respects difference as a gift of the creation, albeit a corruptible one. Refusing to give religious minorities their day in court simply masks the existence of conflict over conscience. Similarly, attempting to quell blessing and rostering dissent in the church by arguing that all matters of sexual behavior are conclusively settled by the biblical text for time and eternity papers over a diversity of conscience that should be acknowledged as a gift of the creation, mysterious as it may be to figure out.

Submission to Christs Lordship

Church conflicts over differences in conscience also require submission to the lordship of Christ. Lutheran Christians are called to do more than simply see difference; they are called to reflect on how difference poses a challenge to the ways in which we all justify ourselves and our lives at the expense of the suffering of others. In acknowledging the challenge that minorities in the state or the church pose to those of us who live acceptable lives” by majority standards, we begin to give up our pretensions that our own lives are the measure of good. Instead, we come to recognize the ways in which Gods surprising and often disruptive grace upends how we justify and prefer our own natures and lives. We give over the power to announce judgment and forgiveness to our Lord.

Seen through Lutheran eyes, the contemporary Courts construction of religious minority claims of conscience is perverse, because it fails to acknowledge the essential communal ties between religious majorities and minorities. In the imagination of many of the justices, religious minorities are not of us,” but are—to turn a well-known Latter-day Saints phrase on its head—a peculiar people.” In the justices’ most benign readings, religious dissenters are like the quaintly odd Amish, who mind their own business and only ask for a small accommodation for their faith from the state. In other justices’ darker imaginations, religious dissenters are social non-conformists with the temerity to ask for special privileges for themselves. Justice Antonin Scalia mocks them for thinking that they are a law unto themselves” who owe no responsibility to their community (or, in the churchs case, to the demands of the text) for the damage that their non-conforming behavior might cause.

In this American legal construction, religious dissenters are other than us,” the oddity or exception set apart from the regular American” whose values and behaviors guide social life. Martha Minow has written compellingly of ways in which majorities measure minorities from their own standpoint, failing to acknowledge the implicit norms by which such peculiar people” are judged, and the colored perspective from which the majority looks down on minorities as odd, wrong, perverse, or irrelevant to social life. Moreover, she argues, such judgments on minorities embrace the assumption that the status quo is natural, uncoerced, and good,” and thus an objectively fair standard to judge the Other rather than a partial, constructed standard by which we use our own preferences to condemn and feel superior to others. A judgment of this sort by any other name is sin, our failure to acknowledge our own attempts at lordship over the other, rather than the lordship that governs our lives.

Lutheran doctrine similarly demands that we honestly and humbly recognize the consequences of our own creatureliness, from the sin that infects all our attempts at judgment to the finitude that makes our evaluation of the Others conscience and life necessarily faulty and incomplete. And, it seems to me, repentance for our attempts to establish our positions as arbiters of Gods will also demands that straight Christians walk in the shoes” of gay and lesbian Christians who are forced to make painful choices between obeying the demands of their faith community and sharing human physical intimacy. I often have wanted to challenge straight, married Christians who rail against same-sex marriage to give up physical affection and intimate relations with their partners for a year or two so they know truly what they are asking of gay and lesbian Christians in the name of God and the church. The very least such Christians can do, it seems to me, is to listen with an open heart to the stories of gay and lesbian Christians, indeed to every single story, and to walk with them as real partners through the tragically lonely path the church calls them to follow, rather than interrupting their stories with condemnation and beating them with Bible verses.

Adopting the Radically Other

In responding to conscientious dissent in the church, Lutherans must also affirm our adoption of the radically Other as a brother or sister in Christ, in stark contrast to the Supreme Courts position on this question. Even the Courts most liberal” Free Exercise opinion, the 1963 Sherbert v. Verner case, which examines whether the state has a compelling interest to override the consciences of religious minorities, does not go this far. While the Sherbert case (now overruled by Smith) requires the state to consider seriously whether its objectives are important and whether it has respected, as much as possible, the religious difference of the other, it continues to assume that the religious dissenter is an outsider” for whom the American people owe no responsibility except freedom. That is, the most a religious dissenter can gain under Sherbert is what the Founders called toleration,” the right to be left alone. Yet, the notion of toleration, while superior to suppression or even indifference, not only continues to assume that the majoritys stance is superior and that any deviance” is tolerated” only because of Americans’ preference for freedom. Toleration also puts the religious dissenter at arms length from the political majority, requiring no affirmative responsibility for the dissenting Other and confining the scope of dissent that will be permitted.

As Christians have used the word adoption as a metaphor to describe their entrance into the community of Christ, by contrast, they speak of the willing embrace of God for the Other in a lifelong relationship that cannot be broken by disagreement over politics or even moral behavior. As descriptive of Christians’ relationship with each other, adoption is a commitment to a person as person, not an assent to his or her beliefs, character, or even life choices. It is a commitment to engage those beliefs, character, and life choices without threatening to disrupt the relationship unless the chasm proves much too deep. It is a commitment to faithfulness in moments of conflict as well as in moments of estrangement. And yet, adoption signals a responsibility assented to, as much internally embraced in the Christians heart with joy as imposed from the outside by the churchs moral teaching. It is a commitment to a stranger, a person whose biology is not shared, whose life story does not parallel the adopters, who by definition is fully other.

This call to adoption of the Other, it seems to me, is the call that Bishop Hanson and others are making to both sides in the same-sex marriage controversy. Or, to use the ELCA task forces metaphor, it is a journey together” under the call of a theology that quite simply and powerfully acknowledges that every person is a sinner, and that our salvation does not depend on either our family structure or our sexuality. It is a call for nothing less; neither the right to exclude one another literally or figuratively from the true church,” nor simply tolerance of each others difference, but rather a life-long embrace. And it is a call to adopt each other not only in word but in deed. The life of the church—especially a church that is asking for such great sacrifice on the part of some of its members—must acknowledge the human needs of those without families and spouses, needs that do not disappear because one is gay or single or old. It must reorganize itself to live for the neighbor who comes to the church with those needs, without becoming simply a faux-family. If the church is so focused on glorifying and preserving the nuclear family that all of those who have much more critical needs for love, affection, and belonging are to be left by the wayside, the church becomes simply a part of the world, not a challenge to it.

Risking on Behalf of Neighbors

This commitment, it seems to me, requires the church to bear a risk with respect to dissenters that our government has been unwilling to bear. American conscientious disobedients—those religious dissenters who insist that American society confront its deepest sins, whether of violence or indifference to human need—receive even less solicitude in the federal courts than those who are simply asking to be left alone. For example, those who have trespassed upon federal property in protest of nuclear weapons or American foreign policy, or who have violated the law to save human lives at our borders, have met with no constitutional sympathy in the courts even when they have rested upon a claim of religious conscience.

This hardened stance by the courts against conscientious objectors” is justified by the serious threat such disobedients supposedly pose to the rule of law. As Justice Scalia describes it, if we allow civil disobedients to break the law, there is no principled way that we can impose the law on others with less benign motives, thus creating anarchy where no person feels the need to obey the law. Because their claims threaten both the authority and equal enforcement of the law in this view, their attempts to expose the corruption of the law are shunted aside, and they are told that their proper recourse is to convince the majority to change the law. And, of course, the disobedient replies, “I wouldnt be here if the legislature had examined the moral propriety of sending arms to the brutal regime of El Salvador or passing a law that the homeless cannot sleep on the streets.At bottom, the Courts reception of disobedients suggests that it is not willing to embrace the risk their plea poses to the rule of law any more than the executive or legislative branches who also refuse them a hearing.

By contrast, Lutherans, certainly, are called to risk everything, including the comfort of authority and security, for the neighbor. We cannot forget that Luther meant this almost literally, exhorting Christians to risk their very lives against the plague in order to minister to the neighbor. This demand is not only that majorities see the anguish and need of minorities in the Church; it is a demand, as well, that minorities in the Church risk the censure and conflict that come with encounter of their neighbors who disagree with them. It demands that each Christian and each political collective respond not first with self-justification or condescension to the Others attempt to witness to the truth of the Word as he understands it, but in willing service to the neighbors need and in invitation to that neighbors own story. Risk means, of course, that the church may get it wrong, even wrong in terms of truth” and the common good” of the church. But to refuse to risk everything except the Gospel itself for the neighbor, his soul as well as his life on this earth, is to refuse to trust a promise that transcends any mistakes we may make in biblical interpretation or in moral discernment. A

Marie Failinger is Professor of Law at Hamline University in St. Paul, Minnesota and Editor of the Journal of Law and Religion.


Minow, Martha. Making All the Difference: Inclusion, Exclusion, and American Law. Ithaca: Cornell University Press, 1990.

Hanson, Mark S. “Let Us Be United.” The Lutheran (April 2003).

Sunstein, Cass R. “Beyond the Republican Revival.” 97 Yale Law Journal, 1539 (1988). ELCA Definitions and Guidelines for Discipline, Section V, 2000 Pre-Assembly Report, 39.

Cases Cited

Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993).

Elk Grove United School Dist. v. Newdow, 542 U.S. 961 (2004).

Employment Div., Dept. of Human Resources v. Smith, 494 U.S. 872 (1990).

Gillette v. United States, 401 U.S. 437 (1971).

Lee v. Weisman, 505 U.S. 577 (1992).

Lynch v. Donnelly, 465 U.S. 668 (1984).

Sherbert v. Verner, 374 U.S. 398 (1963).

Welsh v. United States, 398 U.S. 333 (1970).

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