It is also common to make arguments against homosexuality that are based not on the meanings of individual verses but on themes in the Bible. In this chapter I discuss why these do not make effective arguments for rejecting homosexuality.
Genesis 1-2: orders of creation
Genesis 1-2 is often assumed to set up "orders of creation" or to specify specific roles for the genders, or even to define the purpose of sex as for procreation only. None of these points are ever made specifically in the text itself, they are inferences that some draw from the text.
Categories of laws
In order to respond to the sort of arguments I have been making in this chapter and the previous one, conservatives often try to separate biblical texts into categories. In terms of inerrancy, sometimes it is said that the Bible is not inerrant as to historical matters (but is in regard to law), or inerrant only in its original texts (which we no longer have), or not inerrant on scientific matters (but is inerrant in regard to spiritual matters). The most appealing of these is the claim that the Bible is inerrant as to matters of salvation and faith but is transmitted to us in human form with various humanly introduced errors.
Still, this won’t do. If the purpose of the Bible is to be a religious guide to us, why would so much space in the Old Testament be given to narrative if that is “just history” and not of concern to faith? These categories are not given in the Bible itself, they are inferences about the text. They may be useful distinctions, but they are an “interpretation” of scripture. If conservatives can interpret and divide texts into categories, why cannot liberals do the same?
The same issue can be applied to make categories of laws. A distinction is sometimes made between "cultic" laws (acknowledged to be overturned by Jesus) and "moral" laws (which are assumed to be valid still). But the Bible mixes "cult" and "morality" constantly. It is a cultic offense against God to treat your neighbor in an unethical fashion. These categories of laws may make analytical sense, but the categories aren’t in the Bible.
Another attempt to save the literal passages are to use other verses of the Bible to show that these laws have been applied or extended. Thus it can be claimed that the cultic laws of sacrifice do not apply because of what is written in Hebrews, that food laws do not apply because of what Jesus said  but that other laws do apply because Gentiles have been “grafted into” the Jewish faith (Romans 11:17, for example), and that prohibitions on homosexuality do apply specifically because of Romans 1:26-27 and Jude 7-8. I do not object to this style of argument, however I disagree with these specific conclusions. But again, once such a method of argument is accepted, as I think it should be, then we are open to considering many verses that would help us understand how to apply the laws to our present situation. This will be taken up in a later chapter.
Within my own denomination, there are some special problems of interpretation posed by theological emphases from our Reformation heritage, or more precisely, by what we think is our heritage. I will address one of these now. People not obsessed with Lutheran issues may wish to skip this section.
Lutherans have attempted to apply the categories of Law and Gospel as a way of affirming prohibitions on homosexuality. This attempt also flounders on a series of inconsistencies and lack of specifics.
Lutherans speak of how the Bible brings a message of Law and Gospel in a unified way. The Law is "to afflict the comfortable," by convicting of sin, the Gospel: "to comfort the afflicted," by proclaiming God in Jesus brings forgiveness of sins. Thus, the traditional prohibitions on homosexuality are part of what God wishes to convict us of. The Gospel proclaims we can be forgiven this sin.
However, this dynamic of Law and Gospel does not create a reason for rejecting homosexuality for several reasons.
Theory and practice
This central dogma of the Lutheranism is highly developed theoretically, but undeveloped in practice. Lutherans regularly assert that the Law should be used to order human life, but it is a theoretical concern, that remains "in the air" without any tradition of application to specific situations. This can be seen in various contexts.
In my own experience, when "the Law" is invoked it seems to have no practical effect other than to simply cancel the freedom of the gospel. The only times, I think, that I have ever seen "the Law" applied in to any concrete problem is when the policies of a church institution were being questioned as being unnecessarily hard, unforgiving, or legalistic, in short, of needing a gospel of love, compassion and forgiveness. The response was that "we still live under the law," and thus laws are necessary to regulate an institution in the world. This begs the question: which laws?
More than personal experience, the church has no developed literature or discussion of how to apply law to specific cases: no forum of argument nor established “case law” to draw from. I cannot remember a single practical discussion in all of my time in seminary or ministry about how the Law might function now in a specific context. 
Arguments against homosexuality using Law and Gospel
More formal efforts to use Law and Gospel to reject homosexuality fail to make convincing arguments. I will discuss three efforts from my own denomination.
A document from Luther Northwestern Seminary, dated October 1993  tried to use the Law to reject the approach of the then recently published ELCA task force draft document. However, this document is not an "argument" in any real sense, it is better described as a collection of assertions. It sounds persuasive because we have heard it all before, but it does not construct a case in any way we could recognize. It begins by arguing that because of human sin and the fall we cannot live in some Eden of pure freedom: we need boundaries because we cannot trust ourselves to decide each situation correctly. Yes, this seems clearly so.
Well, then, where will we find, or how will we derive the specific boundaries that we need? Is "the Law" exactly the same for the Christian community as it was before the arrival of Jesus? If so, the gospel is reduced to a message about heaven only. If not, then we must determine what the Law is. We need not a generic term Law, but specific laws. So where are they? Is "the Law" the Old Testament holiness code? Surely not. Is it scattered references by Jesus? Lutheranism seems totally to have overlooked the fact that having argued that scripture is not a law book, not to be understood as having juridical authority, but rather a book that proclaims Christ, that it is just a wee bit of a contradiction to now say that we can read specific verses in the Bible as giving juridical commands about proper sexual behavior. I think this is an old mistake. They asked Jesus, should we pay tax to Caesar or not, and Jesus gave them not a juridical answer but a procedural answer, which exegetes have been trying to turn into a law for centuries.
A faculty member of the same seminary provided a second, related, argument.  Here the argument is for a more general notion of a scriptural law of “sexual boundaries” as argued from a number of texts. The author asserts that sexual boundaries pertain to the first use of the law and have the function protecting the weak of the community, as well as each of us for those things we are weak about. This need is real, but it then opens an analysis on the facts. Does, for example, the community need protecting against two adults of the same sex who wish to hold jobs, buy a house, participate in local organizations while they raise one or more children?
As the author goes on to assess various texts, it isn’t very difficult to make the contention that some sexual behaviors are preferred over others. The author tries hard to read texts such as Genesis 1 and 2, among others, as mandating a specific boundary: the traditional “celibate when single, faithful when married.”
While this is a useful attempt to become specific about what exactly is the law, it still does not address any fundamental questions of hermeneutics, again assuming that scripture can be read as a book of laws. Thus the author wants to condemn homosexuality but not be opposed to women’s ordination and certainly doesn’t want to endorse the death penalty for gays. In order to do so he must resort to a series of criteria of interpretation that border on the ad hoc.
James Nestigen has more recently used the categories of Law and Gospel to reject homosexuality.  He depicts Law as a necessary category for a Christian community. Sexuality is not a private matter, as the culture claims, but one with public consequences. He develops this argument at some length. Who is disagreeing with this idea? For conservatives in the church, “the culture” is depicted (not without cause) as claiming that sexuality is a private mater and that having sex is always a good thing, something that leads to self-fulfillment and growth. They wish to oppose that. But the crucial turn is when conservatives, as Nestigen does, link those homosexually who wish to be Christian to those ideas. After refereeing to (and condemning) violence against gays, Nestigen writes, “By the same token, while pointing out that AIDS is an equal opportunity killer, afflicting heterosexuals and homosexuals, proponents of changing the church’s stand will have to acknowledge that the large number of deaths does indicate a problem.”
Those deaths are a problem, and a problem not unrelated to homosexual behavior. But what would Nestigen say about this statement from the U.S. Department of Justice? “In 2002, women experienced an estimated 494,570 rape, sexual assault, robbery, aggravated assault and simple assault victimizations at the hands of an intimate, down from 1.1 million in 1993. In 1993, men were victims of about 160,000 violent crimes by an intimate partner, and in 2002 men were victims of about 72,520 violent crimes by an intimate partner.”  I think it a certainty that Nestigen, and other conservatives, are appalled by this level of violence. But they do not regard it as a condemnation of heterosexual couples, even though the vast majority of these crimes involve heterosexual partners. They would properly reject any notion this meant that “heterosexuals are inherently violent” and so they should also reject AIDS deaths as proof that homosexuals are inherently promiscuous.
What all these statistics show is that sex is an arena where people can abuse each other and the church should be preaching about that.
This double standard is not an isolated comment. Later in the paper, Nestigen writes “There has always been a special dimension to this promise [of the gospel] for those who have been caught up in their own sexuality. So the ELCA has committed itself to a special welcome for gays and lesbians.” The assumption is that being gay or lesbian is, inherently and obviously, to be “caught up in your own sexuality.” Parents of straight teen-agers may wish to add other examples of who might be “caught up in your own sexuality.”
The standards for clergy sexual behavior have often been somewhat different than for general members of the church, and Nestigen defends this distinction. Referring to tighter scrutiny of pastors brought on by sexual misconduct, he writes, “… given the church’s standards and the holdings of state courts, all clergy are legally responsible for their sexual practices. If the church does change its policies on ordination, homosexual clergy will have to be willing to give a legally defensible account of their sexual practices.” He repeats this point later in the paper. It’s unclear from the context if this should be read as a warning to homosexuals or a threat. In any case, the argument does not hold water. Heterosexual clergy are not required to give a “legally defensible account” of all their sexual practices, just those involving people over whom they have some authority (the principal example being those who come to them for counseling). While not defending the practice, clergy who have affairs, go to strip clubs, download pornography or visit prostitutes are not required to account for this activity unless it becomes public when it becomes embarrassing and may cause their resignation, but it is not a legal issue (unless actual laws are broken).
Is the assumption that homosexual clergy will all be rampantly promiscuous, and thus constantly embarrassing the church?
Aside from the logical problems of this argument against homosexuality, note what is being used for evidence: our observations about the actual behavior of homosexuals. This is, in other words, an argument that does not start from the Bible, nor does it start from “Law and Gospel.” It starts from horror at sexual practices of those different from oneself. Later in this paper, a different sort of examination of homosexuals, one conducted through the lens of the Bible, will reveal a different answer.
Law and Gospel in the Lutheran Confessions
It is a beloved tactic in Lutheranism to accuse your opponents of not having a “right distinction between Law and Gospel,” as mandated by Lutheran confessions. Since few have read the confessions and don’t want to risk public embarrassment by challenging someone who appears to be an expert in them, it is an effective rhetorical technique for claiming a presumption for your position. In the homosexuality debate, the full exchange is usually as follows. Someone mentions the Levitical prohibition on homosexuality. Someone else contends that the gospel has obliterated this. Then the argument is made that this has conflated law and gospel, or worse yet, is an “antinomian”  . Point to the conservatives.
In fact, Lutheran confessions  mention Law and Gospel in several places, all without ever (as far as I know) defining in detail what the law is.  The one major discussion  certainly does not advocate a wild freedom of the gospel where all can do whatever they want. However, the only significant example of what is meant by conflating Law and Gospel is making “the gospel a teaching of law,” the opposite of what opponents of homosexuality would hope was condemned. In other words, what the confessions are concerned about is turning grace into Law, not about overturning Law.
Law and Gospel
The comments here will doubtless bring on howls of “antinomianism” and much bluster about “modern innovations” amid calls for “solid declarations” of “pure doctrine.” However, all I have said is that the Lutheran confessions do not define what the law is, but do say that we should keep it. We still have all the fundamental hermeneutical question of how we find law and what is sin. There is no article in the confessions pertaining to principles of biblical interpretation, none.  However, the Protestant Reformation did produce valuable principles of interpretation, and to them we now turn.
 Mark 7:19.
 Perhaps the Visions and Expectations for Ordained Ministers document might be an exception.
 A Response to the Report "The Church and Human Sexuality: A Lutheran Perspective" of October 1993.
 Koester, “The Bible and Sexual Boundaries.”
 Nestingen, “Lutheran Reformation.”
 Bureau of Justice Statistics, U.S. Department of Justice, web site at http://www.ojp.usdoj.gov/bjs/cvict_c.htm.
 Literally, lawlessness. One who rejects the controls of a socially established morality.
 Tappert, The Book of Concord.
 The Augsburg Confession, Article XXVIII implies a rejection of kosher and ceremonial law. Other passages affirm the Ten Commandments.
 Formula of Concord, article V.
 Ralph Bohlmann, “Confessional Biblical Interpretation: Some Basic Principles,” in Reumann, Studies