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LCMS Convention Workbook St. Louis, Missouri — 2023, Page 221

Scan: The Lutheran Church—Missouri Synod

Transcription machine transcription, uncorrected

THEOLOGICAL DOCUMENTS—COMMISSION ON THEOLOGY AND CHURCH RELATIONS
Differences of marriage customs and in the understanding of marriage are widespread as one considers it
in the great variety of human cultural contexts. But even
within the narrower world of Holy Scripture, marriage
customs have varied significantly. David Instone-Brewer
provides helpful background on the understanding of
marriage in the Ancient Near East, the biblical world
itself and also rabbinic Judaism.19 In the biblical context, no marital variation is more significant than the
widespread evidence for polygamy in the Old Testament
contrasted with the New Testament’s perspective on marriage, which clearly has in view one man and one woman
in a lifelong commitment.20

A legal definition of marriage from 1856 explicitly denies marriage to slaves and does not address any purposes
for marriage. It includes no mention of marriage as a
religious contract, nor does it specify how it is contracted
beyond a reciprocal engagement. It reads as follows:
A contract made in due form of law, by which a
free man and a free woman reciprocally engage to
live with each other during their joint lives, in the
union which ought to exist between husband and
wife. By the terms freeman and freewoman in this
definition are meant, not only that they are free
and not slaves, but also that they are clear of all
bars to a lawful marriage.22

It may be helpful to compare the Bible’s descriptive
definition with other definitions of marriage. For example,
Samuel Johnson defined marriage in 1755:
Marriage is a contract both civil and religious, by
which the parties engage to live together in mutual affection and fidelity, till death shall separate
them. Marriage was instituted by God himself
for the purpose of preventing the promiscuous
intercourse of the sexes, for promoting domestic
felicity, and for securing the maintenance and

David Instone-Brewer, Divorce and Remarriage in the Bible: The
Social and Literary Context (Grand Rapids: Eerdmans, 2002). He
provides ample background on the marriage contracts from these
periods. While some contracts were written (typically when the
dowry was very large), the evidence indicates that even without a
document, the unwritten understanding of marriage included the
same expectations as one would find in contemporary written contracts. Marriage contracts from the period include dowry details and
also details regarding divorce, if the marriage should end in divorce.
While there are indications also that a verbal formula was involved in
marriage — with the husband saying, “Be my wife,” and the wife, “Be
my husband” — marriages were not egalitarian in any modern sense.
He adds: “There is a general understanding throughout the ancient
Near East that a wife can be divorced at will by a husband and have
her dowry returned, but, if she has done wrong, she does not receive
her dowry. There is also some evidence that wives were able o divorce their husbands in some situations” (19). With regard to women
divorcing husbands in the Old Testament period, Instone-Brewer
says the evidence is “sparse” (19). However, this was no longer the
case under Rabbinic Judaism. Although they still could not divorce at
will as could their husbands, marriage customs then clearly allowed
women to petition a court to invoke fines against the husband when
he had violated the terms of the marriage contract, effectively compelling him to grant her a divorce (85–87).
Polygamy is never explicitly condemned in the Hebrew Scriptures.
Indeed, the most prominent figures of the Old Testament such as
Abraham, Moses and David had more than one wife. The 12 sons
of Israel result from a combination of polygamy and concubinage
(Gen. 29:31–30:24; Gen. 35:16). However, while not condemned, the
OT reveals that polygamy often resulted in family discord (e.g., Gen.
21; Gen. 29–30) and, in the case of Solomon, in idolatry (1 Kings
11:1–8). Moreover, near the end of the prophetic period of the Old
Testament, the Lord, through Malachi, condemns Israel for treachery
against “the wife of your youth” (Mal. 2:14–15).

MARRIAGE BETWEEN CHURCH AND STATE

marriage is only between a man and a woman. Perhaps
the best example of this reaffirmation was the Defense of
Marriage Act of 1996:

education of children.21
Johnson’s definition of marriage speaks in terms of
a lifelong civil and religious contract between the two
sexes with an emphasis on affection and fidelity, the
prevention of sin, the promotion of happiness and the
care of children.

Already in 1961 one could find mention of samesex relationships as a form of marriage. Webster’s Third
Dictionary from that year defines marriage, emphasizing
it as “consensual and contractual,” but without mention
of a religious dimension. In addition, it specifies that the
relationship be legally recognized, but also allows for the
use of the term “marriage” in relationships without legal
recognition, such as same-sex relationships, that are “like
marriage.” It reads:
1a (1) the state of being united to a person of the
opposite sex as husband or wife in a consensual
and contractual relationship recognized by law (2):
the state of being united to a person of the same sex
in a relationship like that of a traditional marriage.23

In the thinking of the majority, the fact that such changes
occurred through time meant that the understanding
of marriage itself is subject to change with respect to
its basic foundation as a man-woman relationship. The
majority claims the validity of its novel definition even
though it affirms the timeless, “transcendent” importance of marriage and acknowledges that its history
reveals it to be “a union between two people of the
opposite sex.”31 Nevertheless, the court ruled that this
stipulation ought to be changed to preserve freedom of
choice, arguing that the Fourteenth Amendment to the
U.S. Constitution ensures “the right to enjoy liberty as we
learn its meaning.”32

the Old Testament, we do not see the full equivalent of the
modern nation state, but we do see examples of the “lefthand kingdom” or something akin to “civil law.” That is the
case both when we look at Israel’s existence under various
alien powers such as Egypt, Babylon and Assyria, but also
when we look at Israel’s “theocratic” period during the
period of time from Moses through the judges and the
kings. During that theocratic period, we have the Torah/
Law of Moses, and with it the benefit of knowing the laws
that not only guided the spiritual life of Israel (in its worship, cleanliness and diet), but also laws that were roughly
comparable to civil or state law today, guiding matters of
life, property, family and marriage.

A post-Obergefell definition from Wex33 completes
this survey of marriage definitions.

With regard to marriage, the creation narratives on
the opening pages of the Torah provide, as we have seen,
the standard for how marriage was created and how it is
intended by God to continue to be practiced. However,
under the Law of Moses, given by God at Sinai, we also
see reflections of a certain inconsistency between the
practices of Israel and the Bible’s foundational view of
marriage given at Creation. This is the case because the
Law of Sinai provides both for divorce (Deut. 24:1–4; Ex.
21:8) and polygamy (Deut. 21:15–17; 25:5–10). What are the
faithful to do in light of this?

We note that marriage is still a legal union between
two parties involving their mutual consent, but the significant difference, of course, is the removal of the clear
references to male and female persons in previous definitions. Now the reference is merely to “a couple” in the
current legal definition. For that reason, while all of the
earlier definitions are largely consistent with the biblical
definition, the final definition is not.

When the State’s Understanding of
Marriage Differs from God’s
What is the faithful Christian or the church itself to do
when the state’s definition of marriage is inconsistent
with or contrary to God’s own teaching about marriage
as found in Holy Scripture?
It may be helpful to ask that question of another time
regarding another matter of inconsistency. If we turn to
31

Obergefell, 3 and 4.

Obergefell, 11. The Court identifies four rationale for its decision: (1)
personal choice in marriage, (2) marriage’s unique importance for the
intimate association of two committed individuals, (3) the protection
from humiliation afforded by marriage for children of same-sex couples,
and (4) that marriage preserves social order. Syllabus Pages 3–4.

Wex is a free, collaborative legal dictionary prepared by legal experts
and sponsored and hosted by Cornell Law School. See Cornell Law
School Legal Information Institute, https://www.law.cornell.edu/
wex#:~:text=Wex%20is%20a%20free%20legal,found%20in%20the%20
Wex%20FAQ.
See “Marriage” in Wex, https://www.law.cornell.edu/wex/marriage :~:text=Definition.

MARRIAGE BETWEEN CHURCH AND STATE

In HS1981, the CTCR addressed the matter of common-law (or de facto) marriage after having first argued
two related points. First, the Commission stated that
the “essence of marriage” is not a legal or ecclesiastical
matter. Rather, “the consent of the partners belongs to
the essence of marriage.”25 Second, we note that the
CTCR’s focus on consent did not deny that marriage is “a
divine institution given by God.”26 The “consent” under
consideration is a “commitment to a complete, lifelong
sharing of life in marriage,” without which any “sexual
relations are contrary to God’s will.”27

Because marriage is not essentially a legal or
ecclesiastical matter, it is possible, however, for
a man and woman to give themselves physically
to each other, affirming to each other and to the

Webster’s Third New International Dictionary of the English Language,
Unabridged, ed. Philip Babcock Gove (New York: G. and C. Merriam,
1961).

A REPORT ON CLERGY SERVING AS ‘AGENTS OF THE STATE’

[Marriage:] The legal union of a couple as spouses.
The basic elements of a marriage are: (1) the parties’ legal
ability to marry each other, (2) mutual consent of the
parties, and (3) a marriage contract as required by law.34

Excursus: Common-Law Marriage

Dictionary of the English Language by Samuel Johnson (1755), reference from Dennis Baron, “So How Do Dictionaries Define Marriage
Anyway?” The Web of Language (April 29, 2015), accessed Jan. 22,
2021, https://blogs.illinois.edu/view/25/163789.
“marriage.” (n.d.) A Law Dictionary, Adapted to the Constitution and
Laws of the United States by John Bouvier, (1856), accessed Jan. 22,
2021, https://legal-dictionary.thefreedictionary.com/marriage. Although
this definition is generally consistent with other definitions in this
section, its repugnant denial of marriage to slaves is theologically illegitimate and contrary to the Word of God. Where enacted legally, the
state would thereby be guilty of invalidating marriage for such people
and making a biblical understanding of marriage illegal for them.

First, we must recognize the fall, and with it recognize
that provisions in the Law addressing things like divorce
and polygamy serve the purpose of mitigating their
damaging effects. They are not endorsements of either
polygamy or divorce — as if the Law of Moses encourages
such practices or presents them as inherently good. Jesus
adopts this perspective when He addresses the matter
of divorce in Matthew 19. After establishing the foundational understanding of marriage from Genesis 2:24
with its necessary implication of permanence, He brushes
aside the Pharisees’ ineffectual objection that Moses (the
Law) permitted divorce. With His emphasis on the two
becoming one, Jesus effectively rejects polygamy as also
inconsistent with the Creator’s original intent for marriage, saying, “Because of your hardness of heart Moses
allowed you to divorce your wives, but from the beginning it was not so. And I say to you: whoever divorces his
wife, except for sexual immorality, and marries another,
commits adultery” (Matt. 19:8–9).
Divorce does occur in a fallen world. The laws in the
Torah concerning divorce lessen its damage. The same
can be said with regard to polygamy. Like divorce, it
exists only after the fall, and it occurs not because it is
prescribed for God’s chosen people, but because they,
in their fallen nature, easily fall into the patterns and

A REPORT ON CLERGY SERVING AS ‘AGENTS OF THE STATE’

public their consent to share their future lives
in a permanent union, recognizing that their
union might be fruitful and to do this without a
public ceremony. Such a relationship in reality
constitutes marriage (common-law marriage) and
cannot be called fornication.28
Note, however, that despite this caveat, the Commission
did not endorse or encourage common-law marriage.
Rather, the report continues:
While not a violation of the Sixth Commandment,
such a way of proceeding may involve an element
of deceit in that it implies that the individuals
involved are living in a single state, a condition
which does not in fact exist and which may cause
offense to some. Moreover, this relationship sets
aside the regular societal safeguards which have
been established for the protection of the rights
and interests of all the parties involved, and in
some states it is a violation of the legal requirements for marriage.29

There is an obvious consistency in these representative definitions. In each case, marriage is understood
as a contractual relationship between the sexes — that
is, between a man and a woman — that has legal (civil)
standing. That the relationship is consensual is either implied or explicit. It may be noted that how the marriage
achieves its legal or civil standing is not articulated —
thus allowing that so-called common-law marriage is by
no means excluded.

Only then does the report consider common-law
marriage.

In the 1980s and afterward, with rising attention
to and greater support for legitimizing same-sex relationships, the initial reaction was a reaffirmation that
21

In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and
agencies of the United States, the word “marriage”
means only a legal union between one man and
one woman as husband and wife, and the word
“spouse” refers only to a person of the opposite
sex who is a husband or a wife.24

U.S. Code § 7. Definition of “marriage” and “spouse” (Pub. L. 104–199,
§ 3[a], Sept. 21, 1996, 110 Stat. 2419) as quoted by the Legal Information Institute, Cornell Law School, https://www.law.cornell.edu/uscode/
text/1/7 (last accessed Jan. 21, 2021). This definition with its explicit
references to “one man and one woman” was a result of the Defense of
Marriage Act, signed by President Bill Clinton in 1996.

HS1981, 11.

HS1981, 12.

MARRIAGE BETWEEN CHURCH AND STATE

Here we should add that the 1981 consideration of
common-law marriage did not envision a circumstance
in which couples might live together without securing
a marriage license from civil authorities as an act of
protest against changes in marriage law. We consider that
possibility below in the section titled “Should Christians
Decline Legal Marriage? or Can Christians Conscientiously
Object to Legal Marriage?”

Marriage after Obergefell
The understanding that legal marriage was always between
a man and a woman was ruled unconstitutional in the
Obergefell v. Hodges decision of June 26, 2015. Central
to the argument of Obergefell were previous changes in
marriage law. Its examples were “the decline of arranged
marriages and the abandonment of the law of coverture.”30
28

221

HS1981, 12.

Obergefell v. Hodges, 576 U.S. 644 (2015); Syllabus of the Opinion,
2. The law of coverture (or couverture) was a common law provision
that a married woman did not have a separate legal existence from her
husband since they were, legally, one person (grounded in Genesis 2’s
“one flesh”). The law was abolished on a state-by-state basis in the late
1800s with women’s property rights legislation. S.v., coverture (n.d.),
West’s Encyclopedia of American Law, edition 2 (2008), last accessed
Jan. 22, 2021, https://legal-dictionary.thefreedictionary.com/coverture.
We should note that in the brief survey of definitions herein, there is
no mention of arranged marriages or the law of coverture — or any
other specific marriage customs having to do with how marriages
take place.

A REPORT ON CLERGY SERVING AS ‘AGENTS OF THE STATE’

practices of the surrounding nations and peoples. Old
Testament laws pertaining to polygamy protect the women who may so easily be victimized by it. It seems completely valid to include here also something akin to Jesus’
judgment in Matthew 19:9. “Because of your hardness of
heart Moses allowed [polygamy], but from the beginning
it was not so.”

divorce law. Christians may question with good reason the
notion of “no fault” divorce, at least from a moral standpoint, for divorce can only occur because of sin. It is always
the result of human fault and failure and unfaithfulness of
one sort or another. Accommodation is not approval or
endorsement, but it is unavoidable in the matter of divorce
in certain situations.

So, we return to the question: What are faithful believers to do when laws allow for practices we know are
contrary to God’s perfect will? We should, like Israel, first
realize that in a fallen world among heart-hardened men
and women, God’s will is violated. With that, we, too, must
recognize the many ways in which we all stand convicted
of sin and need to practice and encourage repentance —
for all stand convicted. And, sadly, we must recognize that
even with repentance, sin’s consequences are such that they
cannot always be made right. On the practical level, we
have to accept — with bitter acquiescence — that sometimes life in a fallen world will oblige a society to have laws
that allow certain sins to occur, all the while seeking as
much as possible to mitigate their consequences.

Similarly, no faithful Christian can endorse polygamy.
Even with its prevalence among great figures in the Old
Testament narrative, the Hebrew Bible consistently implies
that faithful monogamy, not polygamy, is the ideal for
God’s people.37 This implication is made explicit in the
New Testament.38

It is just such an accommodation that Christians have
acknowledged, to various degrees, regarding divorce. No
faithful, biblical view of marriage can ever view divorce
as an inherent good. Having affirmed the God-given
purposes of marriage — as a union of mutual love with
the hope of children and the intention to help one’s
spouse in his or her battle against sin — HS1981 reminded
us of the reason marriage requires permanence: “It gives
rise to a set of hopes and expectations which ought not
be disappointed, not only because we have a commandment to the contrary, but because to disappoint them is
to fail in a fundamental human commitment answering
to an equally fundamental human need.”35
So, we accommodate divorce, but without any endorsement of it as inherently good. We acknowledge times when
it is unavoidable, even for Christians. However, within the
church we ought rightly to restrict divorce far more than
in the wider culture. Aware of the brokenness of the world
and the need to deal with the realities there, the church
nevertheless always honors and strives for the ideal of
God’s will for marriage as a lifelong union.36 In addition,
the church may also take issue with specific aspects of

As a result, the practice of polygamy is not an immediate problem in the western church today.39 That is not the
case for churches in certain missionary settings, however.
While most Christian churches have discouraged or forbidden polygamy as a marital option for baptized Christians, the case has been more challenging for polygamists
who are converted. While some churches have required
such men to release any wives other than their first wife,
others have accommodated polygamy for that generation
lest the other wives of a polygamist (and any children) be
left in a hopeless circumstance without care or provision
and subject to scorn and abuse.40

The Challenge of Same-Sex Marriage
Several questions are helpful in considering the current
challenge of how Christians should address themselves
to a matter such as legalized same-sex marriage in the
western world today.
1. Does the state’s definition invalidate biblical
marriage or make it illegal or subject to penalty?

In the Soviet Union, the Communist party attempted
during a brief period of time to abolish marriage.41
37

See Psalm 128:3; Proverbs 12:4; 18:22; 19:14; 31:10–31; Isaiah 50:1;
Ezekiel 16:8; Malachi 2:14.

Matthew 19; 1 Corinthians 7; Ephesians 5:22–33; 1 Timothy 3:2, 12;
5:9; Titus 1:6.

Given America’s rapidly changing sexual climate, one cannot discount
the possibility that polygamy may become a pressing problem for
the church to address. Obergefell has, arguably, opened the door to
legalization of polygamy. Moreover, the practice does exist in segments
of Mormonism and elsewhere.

HS1981, 25.

Note two CTCR reports: Divorce and Remarriage (1987), www.lcms.
org/Document.fdoc?src=lcm&id=318, and The Creator’s Tapestry
(2009), www.lcms.org/Document.fdoc?src=lcm&id=310 (see Pages
46–48). See also Question 74 and its answer in Luther’s Small Catechism (Page 100).

See, for example, Laura Rademaker, “The Polygamy Question: Missions, Marriage, and Assimilation,” The Journal of Religious History 43
(2) (2019): 251–68, https://doi.org/10.1111/1467-9809.12585.

See Anonymous, “The Russian Effort to Abolish Marriage,” The
Atlantic, July 1926, https://www.theatlantic.com/magazine/archive/1926/07/the-russian-effort-to-abolish-marriage/306295/.

MARRIAGE BETWEEN CHURCH AND STATE

A REPORT ON CLERGY SERVING AS ‘AGENTS OF THE STATE’

2023 Convention Workbook