“Should adultery be illegal? What about homosexuality?” These were questions posed to Al Mohler from a Christian schoolteacher who passed along ideas from a class discussion with his students. Four days before today’s mid-term elections, Mohler answered these questions in his daily Briefing.
Mohler identifies the teacher as someone named David, who teaches at “a classical academy in Whites Creek, Tenn.”
Based on a discussion his junior theology class had on the book of Romans, David wrote to Mohler: “Several questions that were asked during the discussion. Should adultery be illegal? Should homosexual marriage be illegal? If adultery should not be part of the law code, then why should Christians have a problem with homosexual marriage being legal?”
Mohler was delighted by these questions, responding: “David, you encourage me. Your class encourages me. Good question. And there’s an easy, quick fundamental answer to this. And when I say it’s easy, I mean in Scripture it’s easily found.”
“In short, Mohler dismisses the category of same-sex marriage as even existing and then toys with the idea of criminalizing adultery.”
In short, Mohler dismisses the category of same-sex marriage as even existing and then toys with the idea of criminalizing adultery. But as he plants these thoughts into the minds of his listeners, including children, he weaves his way through a series of false assumptions about marriage and adultery in the Bible and about the criminalization of adultery in history.
Where is marriage in creation?
Mohler begins his “easily found” answer, saying: “In the Scripture you have marriage given as a part of God’s gift to us in creation. Adultery is a sin against marriage, but it is not a redefinition of marriage. And that’s what’s important. Adultery actually is only adultery because it violates a definition of marriage that is given to us in Scripture. One man, one woman exclusively for one lifetime. Adultery violates marriage. It doesn’t repudiate it. Same-sex marriage repudiates marriage. It is a denial of the very essence of marriage. Oddly, when we use the word ‘adultery,’ it only makes sense because we do know what marriage is. But when you try to redefine marriage itself, that’s where the problem becomes even more acute.”
The first problem with Mohler’s answer is that sexuality has existed for 1.2 billion years, long before the Bible was written two to three thousand years ago. If we want to develop a theology of sexuality that’s rooted in the creation, then we have to accept the far more ancient, evolving story of sexuality out of which we’ve emerged.
Al Mohler
The second problem with Mohler’s answer is that marriage in the Bible is not found in the creation narratives of Genesis. In The Making of Biblical Womanhood, Beth Allison Barr points out that “early English Bible translations did not accurately reflect Hebrew words or relationship but instead reflected early modern English sensibilities. Women became ‘wives’ in English Bible translations, even when they would not have been considered wives in the biblical world. The word marriage never appears in the Hebrew text.”
Barr points out that the Hebrew word translated “wife” in Genesis 2:24, where a man cleaves to his wife, is the same word for “woman” in verses 22 and 23. She also notes that the 1611 KJV inserted the subheading “Institution of Marriage” prior to these verses. But in reality, wives and marriage never were mentioned in the Hebrew language.
Where in the Bible does it clearly define biblical marriage as “one man, one woman exclusively for one lifetime”? And who in the Bible practiced this definition?
Defining adultery in the context of biblical marriage
Despite these issues, Mohler is correct in connecting the definition of adultery to what marriage is. But unfortunately for Mohler, marriage in the Bible looks nothing like marriage today.
“Marriage in the ancient world is very different from marriage in our world.”
Hebrew Bible Scholar Sandy Richter explains: “Marriage in the ancient world is very different from marriage in our world. Marriage was not the individual choice of two adults of legal age based on chemistry and compatibility. Marriage was an alliance between two families designed to distribute wealth in a mutually beneficial fashion. Even when chemistry was in the mix … economic advantage was still the controlling objective.”
According to Richter, the primary objective of marriage was “to provide legitimate heirs for the household.”
Consider that definition of marriage in light of these biblical commands.
- Exodus 21:4 — “If his master gives him a wife and she bears him sons or daughters, the wife and her children shall be her master’s, and he shall go out alone. But if the slave declares, ‘I love my master, my wife, and my children; I will not go out a free person,’ then his master shall bring him before God. He shall be brought to the door or the doorpost, and his master shall pierce his ear with an awl, and he shall serve him for life.”
- Deuteronomy 25:5,6 — “When brothers reside together and one of them dies and has no son, the wife of the deceased shall not be married outside the family to a stranger. Her husband’s brother shall go in to her, taking her in marriage and performing the duty of a husband’s brother to her, and the firstborn whom she bears shall succeed to the name of the deceased brother, so that his name may not be blotted out of Israel.”
- Deuteronomy 25:7-9 — “But if the man … persists, saying, ‘I have no desire to marry her,’ then his brother’s wife shall go up to him in the presence of the elders, pull his sandal off his foot, spit in his face, and declare, ‘This is what is done to the man who does not build up his brother’s house.’”
In these biblical commands, the definition of marriage is not mutually submissive love between one man and one woman for life as a picture of Christ and the church. It’s an economic transaction to ensure the power of the patriarch into the next generation. Women are given. And their role is to bear children for their husband or their master.
Because women were given and taken for the purpose of economic advantage, adultery was defined in economic terms, with women listed among a man’s possessions. Consider how women were spoken of based on their being possessed by a man and how adultery was a crime against the man.
“Adultery was defined in economic terms, with women listed among a man’s possessions.”
- Exodus 20:17 — “You shall not covet your neighbor’s house; you shall not covet your neighbor’s wife, male or female slave, ox, donkey, or anything that belongs to your neighbor.”
- Leviticus 20:10-21 — “If a man commits adultery with the wife of his neighbor … The man who lies with his father’s wife … If a man lies with his daughter-in-law … If a man lies with a male as with a woman … If a man takes his sister, a daughter of his father … If a man lies with his uncle’s wife … If a man takes his brother’s wife … .”
- Deuteronomy 5:21 — “‘Neither shall you covet your neighbor’s wife. Neither shall you desire your neighbor’s house, or field, or male or female slave, or ox, or donkey, or anything that belongs to your neighbor.’”
- Deuteronomy 22:22-23 — “If a man is discovered lying with the wife of another man … If there is a young woman, a virgin already engaged to be married, and a man meets her in the town and lies with her … .”
How was adultery criminalized in the Bible?
The penalty for adultery in the Bible depends on who you are. In many cases, the penalty is death. But occasionally, there is nuance.
For example, according to Deuteronomy 22:28-29, “If a man meets a virgin who is not engaged and seizes her … the man who lay with her shall give 50 shekels of silver to the young woman’s father, and she shall become his wife.” In other words, this rapist would have to pay a fine to the woman’s father and marry the woman he raped.
Or consider another example in Deuteronomy 22:13-20. In this case, if “a man marries a woman but after going in to her dislikes her and makes up charges against her,” then the young woman must have evidence of her virginity. If she happens to have evidence of her virginity, then “the father of the young woman shall say to the elders: ‘I gave my daughter in marriage to this man, but he dislikes her, and now he has made up charges against her, saying, “I did not find evidence of your daughter’s virginity.” But here is the evidence of my daughter’s virginity.’”
In this case, the man who lied about the daughter would be fined 100 shekels of silver, “which they shall give to the young woman’s father.” But if she failed to present evidence of her virginity, then “the men of her town shall stone her to death” for “prostituting herself in her father’s house.”
“Even the most conservative evangelical complementarian has redefined marriage from what is ‘easily found’ in the Bible.”
So Mohler is correct when he says that adultery is defined based on what marriage is. The issue for him is that marriage in the Bible is not what marriage is today. Even the most conservative evangelical complementarian has redefined marriage from what is “easily found” in the Bible.
How has adultery been criminalized globally?
After giving his view of marriage in the Bible, Mohler said: “Should adultery be illegal? … In almost every civilization, to some degree it has been. And even in our society, at least until modern times, if not being a criminal charge, it was a legally significant issue in something like marital relations. And not to mention the question of divorce. Adultery became a very legally significant issue because it was in the law of God, and it is in any civilization that prizes marriage.”
Given Mohler’s condemnation of modern society, and his idealizing of the past, one might wonder what the history of criminalizing adultery in “almost every civilization” has looked like.
While the Bible contained penalties ranging from fines to stoning, civilizations since then have included mutilation, torture and capital punishment. Fifteen countries still utilize stoning. The final European country to decriminalize adultery was Austria in 1997.
How has adultery been criminalized in the United States?
While the vast majority of the world has moved on from criminalizing adultery, 16 states in the U.S. still consider adultery a crime as of 2022. Oklahoma, Michigan and Wisconsin list adultery as a felony, with Oklahoma making adultery punishable by five years in prison and Michigan by four years in prison.
“16 states in the U.S. still consider adultery a crime as of 2022.”
The United States military outlaws adultery, including among couples who have an open marriage, which is a marriage in which both partners consent to having sexual relationships with people outside of their marriage.
Despite the fact that Lawrence v. Texas brought laws against consensual sex between adults into question based on the right to privacy, Michigan and Mississippi continue to have laws on the books against unmarried couples living together.
But where did these laws come from?
According to JoAnne Sweeny, a law professor at the University of Louisville, fornication and adultery charges became popular after the Civil War. Then “in the 1930s, ’40s, and ‘50s, they mention specifically if the person is Black and the other person is white,” she explained. “You don’t need to mention that, and they do. You get the sense, not only for interracial stuff, there’s this social shaming: We don’t do that with those sort of people. It can also be class shaming. These prosecutions seem to be very much enforcing social codes, at different levels.”
Sarah Laskow, a senior editor with the Atlantic, added, “Adultery laws were used not just to protect individuals or the institution of marriage, but to police what kinds of people had sex with each other, at all.”
What is Mohler recommending?
Mohler concluded his response to the schoolteacher with: “And so ‘illegal’ might not be the right term in every society under every rule of law, but marriage must be rightly defined and marriage must be rightly defended, including the defense of the law. Otherwise, the law leaves defenseless what is central to society and ordered liberty.”
Notice those last two words, “ordered liberty.”
Ordered liberty in U.S. history refers to minor restrictions on freedom that establish public order so that liberty can be exercised more freely by all. Examples of ordered liberty include traffic, food safety, consumer protection, sanitation and child labor laws.
But what does Mohler mean by ordered liberty?
While stressing the importance of overturning the Obergefell decision that legalized same-sex marriage, Mohler concluded his thoughts with an appeal to ordered liberty.
He also recently stated: “If America leaves that general Protestant commitment, that general Christian commitment when it comes to the inheritance of the Christian worldview, I do not believe that this experiment in ordered liberty can last.”
And what is the Christian worldview, according to Mohler?
He bases the Christian worldview in the Trinity and says that after creating Adam, God “created the family by creating and establishing marriage,” where God made Eve as “a helper, a compliment to him.”
“Mohler’s view of ordered liberty prioritizes his views of marriage.”
Mohler’s view of ordered liberty prioritizes his views of marriage, being structured within the complementarian, patriarchal framework of men being called to do God’s work while women help them. In other words, to Mohler, ordered liberty depends on men being in charge of women.
Thus, according to Mohler’s worldview, what does the law leave defenseless that is central to society and ordered liberty? Male power.
But how might Mohler recommend applying his patriarchy to United States law? In an article titled, “Adultery: When Law and Morality (used to) Agree,” Mohler declared: “Throughout most of human history, morality and law were united and in agreement when it came to the reality of adultery and the larger context of sexual immorality. Laws criminalizing adultery were adopted because the society believed that marriage was central to its own existence and flourishing, and that adultery represented a dagger struck at the heart of the society, as well as the heart of marriage. The sexual revolution and our cultural addiction to autonomous individualism has changed all that.”
Despite the presence of these laws in the United States, those who have sex outside of marriage rarely get charged. But Mohler may want to see that changed. In a briefing about prosecutorial discretion — which is a prosecutor’s decision to file charges or not — Mohler said: “The revolutionary issue here is the widespread argument that prosecutors should not prosecute crimes when they think there’s a disparate kind of effect, or they just don’t like the laws themselves. Now, let’s just state the obvious, our rule of law, our constitutional order comes down to requiring constitutional officers to fulfill their responsibility.”
We are sexually vulnerable to Christian nationalists
Mohler is consistently promoting a patriarchal worldview, appealing to an ancient patriarchal law, lamenting that adultery and fornication laws are no longer enforced, and saying that prosecutors should be required to file charges.
“The reality is that we are sexually vulnerable to Christian nationalists.”
On this election day, many people are concerned about what the rise of Christian nationalists may mean for law and justice in the United States. But given the conservative majority in the Supreme Court, the growing boldness of the Christian Right in promoting discriminatory policies, and the fact that these laws already are on the books in 16 states, the reality is that we are sexually vulnerable to Christian nationalists.
Christian nationalists don’t have to pass new laws. The laws already are on the books. They simply have to enforce them as Mohler wants them to do. Thankfully, in response to the conservative majority in the Supreme Court, there is a growing urgency among state politicians to remove these laws before the Supreme Court can enforce them.
It takes courage to deal with these laws.
Nobody wants to be the one to promote adultery and secretive affairs that break up marriages and families. This piece is certainly not intended to do so. And no politician wants to run on a platform that appears to be promoting adultery.
But this is bigger than adultery. It’s about the ordered liberty of patriarchal power. And consenting adults should be allowed to have sex with each other without being threatened by patriarchs.
Because adultery, fornication and cohabitation laws are still on the books, we are vulnerable to the whims of white evangelicalism. What has white evangelicalism done to give us reason to trust that they won’t enforce what they already legally have the right to enforce?
Rick Pidcock is a 2004 graduate of Bob Jones University, with a Bachelor of Arts degree in Bible. He’s a freelance writer based in South Carolina and a former Clemons Fellow with BNG. He recently completed a Master of Arts degree in worship from Northern Seminary. He is a stay-at-home father of five children and produces music under the artist name Provoke Wonder. Follow his blog at www.rickpidcock.com.