During its annual convention in June 2012, the ELS resolved that “our members be alerted to this recent challenge” to the Biblical teaching on marriage (the “preferential treatment given to those who live together outside of marriage due to the Patient Protection and Affordable Care Act”) and “be encouraged to remain steadfast in their commitment to the institution of marriage of one man and one woman as established by God in Holy Scripture and natural law” (Report of the 95th Convention of the Evangelical Lutheran Synod, p. 88).
In basing the institution of marriage of one man and one woman on God’s establishment in Holy Scripture and natural law, the ELS was following the lead of the Lutheran Confessions. In response to God’s institution of marriage being challenged by the Roman Catholic ban on the marriage of priests, in the Apology to the Augsburg Confession, Melanchthon first makes the Scriptural case for marriage based on Genesis 1:28 and then makes the following argument based on natural law:
Apology of the Augsburg confession, Article XXIII:9-12
Second, because this creation or divine ordinance in the human creature is a natural law, jurists have accordingly spoken wisely and rightly that the union of male and female is a matter of natural law. However, since natural law is immutable, the right to contract marriages must always remain. For where nature is not changed, it is necessary for that order with which God has endowed nature to remain; it cannot be removed by human laws. It is therefore ridiculous for our opponents to prate that marriage was commanded in the beginning, but that it is no longer. This is the same as if they were to say: “Formerly people were born with a sex; now they are not.” No artisan could fabricate anything more artful than these foolish, inept thoughts, devised to elude natural law. Therefore let this remain the case, both what Scripture teaches and what jurists wisely have said: the marriage of male and female is a matter of natural right. Moreover, a natural right is truly a divine right, because it is an order divinely stamped upon nature. However, because this right cannot be changed without an extraordinary act of God, the right to contract marriages must of necessity remain, for the natural desire of one sex for another sex is an ordinance of God in nature. For this reason it is right; otherwise why would both sexes have been created? (K/W 249)
Granted, the context of the marriage debate in the 1530s was different than the debate today about whether the definition of marriage should be altered to include unions between homosexual couples. Still, the argument used in the Apology has much for us to use in the current debate:
1) The appeal to natural law: According to natural law theory, “God created nature and especially human beings, with certain purposes that can be discerned through the exercise of human reason and the conscience” (Ryan MacPherson, “Teaching Objective Morality to a Mostmodern Audience,” Here We Stand: A Confessional Christian Study of Worldviews, Milwaukee, WI: Northwestern Publishing House, 2010, p. 150).
This means that the inborn sense of right and wrong imbedded in all human beings and the ordering of things in nature are a way of discerning an objective standard of morality. In the public square such an appeal to an objective morality based on nature, reason, and conscience may gain greater traction when addressing those who go into shut-down mode when hearing, “The Bible says….”An appeal to natural law has a long history in the constitutional law of the United States, as the founders wrote of “inalienable rights” and “self-evident truths.”
2) Natural law is immutable and cannot be changed by human laws. Such a change would require a change in nature. So long as humans are born male and female, so long is marriage between male and female commanded and the contrary forbidden.
3) The desire of one sex for another is natural and right. “Otherwise why would both sexes have been created?” On the other hand, appealing to natural law in Romans 1:26-27. Paul calls homosexual relations and desires “contrary to nature.”
Marriage is not a human invention. It is not something for humans to redefine. It is an institution of God. Not only is this institution to be found in Scripture but it is also a matter of natural law. As Lutherans, the institution of marriage is part of our confession, to which we are to remain steadfast and to bear witness to in the public square.