Understanding Rights and Same-Sex Marriage

On Friday June 26, 2015, the Supreme Court ruled in a 5-4 decision that same-sex couples have a constitutional right to marry (Obergefell v. Hodges). The country has practically erupted in simultaneous celebration and deep disappointment, and news stations and social media have carried numerous discussions and debates. The conversations surrounding homosexuality and same-sex marriage will continue for some time, but it’s important to maintain kindness and civility with one another, even when we strongly disagreed.

I am currently working on a response to both Supreme Court decisions, but this morning I saw a well-known millennial Christian leader post a good question on Facebook (Rachel Held Evans). I want to respond to her question, as I think it is a genuine question that many people have and that needs answering. She asks:

Here is what I genuinely don’t understand about the argument against civil rights for same-sex couples: The argument holds that because some citizens believe that their religion forbids same-sex marriage, it should be illegal for everyone. Okay. Some citizens believe that their religion forbids remarriage for divorcees (Matthew 19). Should we make that illegal? Some citizens (and MANY citizens up until the 1970s) believe their religion forbids interracial marriage. Did the Supreme Court overreach when it declared in 1967 that state laws banning interracial marriage were unconstitutional? Still others believe their religion teaches the sole purpose of marriage is procreation. Should it be illegal for infertile people to get married or couples over 60? Nothing about yesterday’s decision forces people with religious convictions against same-sex marriage to perform those marriages. That freedom is preserved, just as it remains totally legal for a church today to refuse to marry an interracial couple. Yesterday’s ruling simply allows for those who do not share that same religious conviction to enjoy the same civil liberties that the rest of us enjoy. Furthermore, is it not a more serious violation of religious liberty to tell a same-sex couple whose religion allows for, and in fact celebrates, marriage that they cannot practice that religious conviction because some of their fellow citizens do not agree with it? Civil rights aren’t up to a vote. They aren’t up to public opinion. Civil rights are part of what it means to be an American citizen. Theological arguments around marriage set aside for another day, I simply cannot find a single compelling argument in support of denying civil rights to LGBT people that does not rely on an unhealthy marriage (sorry!) between church and state.

The Nature of Civil Rights

This question centers around civil rights, so we need to clarify what civil rights are. Civil rights are a class of human rights pertaining to the civic and political spheres, that protect individuals from infringement by other individuals, organizations, cultural institutions, or governments. They come in two forms. The first are pre-political, natural rights that governments recognize and codify as law. This would include the kind of inalienable rights the Declaration of Independence speaks of, the rights to “life, liberty, and the pursuit of happiness.” They also include many rights in the Bill of Rights, such as freedom of speech, press, exercise of religion, self defense, and much more. These rights are naturally occurring, God-given, and innumerable. They are known as negative rights as they place obligations of non-interference upon everyone else. The second kind civil rights are the result of civil laws that are equally accorded to everyone. In America, this includes rights such as the right to a trial by jury, the writ of habeas corpus, right to remain silent, the standard of reasonable doubt, to social welfare services if you qualify, and a host of other rights accorded by governments to their citizens through legislation. These rights are not naturally occurring, innumerable, or provided by God, but they only obtain through government law-making. This means that they are not universal, but can vary from country to country and over time. It also means that changing these rights is not immoral or in any way wrong. Many of these kinds of civil rights are known as positive rights because they place obligations of provision upon everyone else.

What kind of civil right is marriage? Marriage obviously falls under the former kind of civil right, as it is a pre-political reality that has existed from the beginning of the human race, and has taken a consistent, universal, and recognizable form across all cultures for millennia, namely, heterosexual, monogamous relationships. (This isn’t to deny that many cultures have practiced variations of marriage, e.g., polygamy in the ancient Near East, but simply that some form of heterosexual marriage has predominated throughout world history). This means that marriage is not up for redefinition by civil governments through various pieces of legislation, court decisions, or constitutional amendments because its origin does not stem from any civil legislation or will of man. Instead, it is an institution that must be correctly apprehended, understood, and described. In other words, it is an objective reality with an independent, metaphysical essence that exists regardless of what governments might say and do.

This means that the central question we must answer before we can talk about marriage as a civil right is What is marriage? Our understanding of what marriage is will determine the nature of the civil right it communicates and endows upon us all. This is exactly what the debate has been about. LGBT individuals and advocates answer that question quite differently than those who espouse a heterosexual understanding of marriage. How are we to answer this question? We could rely upon tradition, history, and consensus. Or we could rely upon religious texts, whether they be Christian, Jewish, or Muslim. However, I think the best approach for our culture is the natural law approach that uses human reason, universal moral beliefs, and principles of teleology to deduce the nature and purpose of marriage. [1] The best book that exists on this subject currently is What is Marriage? Man and Woman: A Defense, by Sherif Girgis, Ryan T. Anderson, and Robert P. George (or you can read their 2013 essay in the Harvard Journal of Law & Public Policy here). (Another good book is Making Gay Okay: How Rationalizing Homosexual Behavior is Changing Everything by Robert R. Reilly; see my book review here).

What is Marriage?

What is the essence of the natural law argument? It is that marriage is a comprehensive union of body and spirit ordered toward procreation and family. [2] What does this mean? A comprehensive union unites bodies through sexual intimacy and spirits through intellectual, emotional, and psychological intimacy. (Note: this definition relies upon anthropological substance dualism, so materialists who are substance monists won’t be convinced). In marriage these two aspects are necessarily concomitant with each other. If sexual intimacy was all that was needed for comprehensive union (and thus marriage), then prostitutes or anyone in a one-night-stand could be said to be married to the person they had sex with (this could even be extended to rape). But this is obviously false. If unity of spirit (i.e., soul, mind, and emotions) was all that was needed for a comprehensive union (and thus marriage), then close friends could be said to be married. But this too is obviously false. The only relationship that can cause a comprehensive union bodily and spiritually is one man and one woman that is exclusive and committed for life. Why exclusive and committed? And why not three or more persons? Any man-woman comprehensive union that invites a third individual into the relationship necessarily breaks the union of the first two, and if one spouse either commits adultery or abandons the other, this also results in a severing of the union. (In reality, inviting a third individual to participate in an already-existing marriage is actually a form of adultery). The only way the union can be comprehensive is through the anthropological fact that men and women are distinct and complimentary in every way; and the only way the union can be called a union is if it is not broken through polyamory, adultery, or abandonment.

Why not two men or two women? The problem is that such relationships cannot join the two individuals together bodily. Neither oral nor anal sex is capable of bodily union. This is because only in coitus do the male and female sexual organs and functions find their fulfillment. Every other bodily system is a self-contained, functional unit in each person – except for the sexual. The sexual component necessarily requires someone of the opposite sex to be enjoined to in order to be completed, and neither oral nor anal sex can do this. In addition, as defined above, marriage as a comprehensive union is ordered toward procreation and family. This requires a man and woman, as same-sex couple cannot naturally create a family. Instead, they must use external or artificial means of having children, either through in-vitro fertilization or surrogate mothers. The very fact that same-sex relationships cannot naturally procreate disqualifies this kind of relationship from being a marriage. Now, the common objection at this point is what about infertile couples, couples that voluntarily choose not to have kids, or marriages between older folk who are no longer fertile? The answer to this question is in the italicized words above: “ordered toward.” This is where the teleological aspect of marriage kicks in. It doesn’t mattered whether a married couple ever has children or not; what matters is if they are in the sort of relationship that is designed and ordered toward producing children.

Consider this example. A carpenter makes a beautiful wooden chair and puts it out for sale in the front window of his store. Unbeknownst to the carpenter, the right front leg is defective, such that, if anyone sat in it, it would break. It sits there for years, but no one buys it. It is then placed in the back storage room where it is forgotten, and it rots and falls apart. Now, is the chair still a chair even though (a) it was never used, and (b) if it had been used, it would have broken? Yes, of course. It is still a chair for two reasons. First, it met the necessary and sufficient material conditions for being a chair (seat, back, legs, etc.). Second, it was designed to be sat in. We know it is a chair, and not, say, a baseball bat or a picture frame, because of its design. And it doesn’t matter that it was never used; it is still a chair. In the same way, it doesn’t matter if a marriage never actually produces children or infertility makes procreation biologically impossible. It is still a marriage because it is designed for the purpose of procreation and family. Of course, admitting the teleological dimensions of marriage ultimately requires admitting that there is a designer (i.e., Creator) to make ontological sense of the teleology, but we are only worried at the moment about teleological epistemology, or identifying and understanding the knowable design of marriage (even if we don’t know its origin or ontological grounding).

Finally, marriage understood as a comprehensive union between a man and woman for the purpose of procreation and family is uniquely capable of raising healthy children. This is the social reality that children have a human right to their biological father and mother, and that the complementary parenting abilities both a mom and dad bring are uniquely situated for raising children. All gay relationships would intentionally deprive children of their mothers; and all lesbian relationships would intentionally deprive children of their fathers. Not only is this wrong, but it is extremely harmful to children. Children who grow up in single, divorced, homosexual, or polygamous households do not develop and thrive as well as if they had been raised by their biological parents in a healthy marriage relationship. The social science research on children and parents bears out this fact conclusively. [3]

From the natural law argument, we can see that marriage necessarily requires a man and a woman in a monogamous, exclusive, and permanent relationship. This is its essence. It cannot be otherwise, for once any of these components are altered or removed, it ceases to be a marriage. This is what marriage is, and it is the core insight of the traditional position.

Civil Rights and Same-Sex Marriage

So when Evans asserts that “the argument holds that because some citizens believe that their religion forbids same-sex marriage, it should be illegal for everyone,” this is actually incorrect, for two reasons. First, the argument by traditionalists is not merely or even explicitly religious, but it stands upon natural law reasoning and knowledge that is accessible to everyone regardless of their religious convictions (or lack thereof). (This is not to say that some religions do not give good reasons for believing in heterosexual, monogamous marriage, but simply that the argument does not rely upon religious texts, creeds, or traditions). Second, the belief is not that “X is wrong” or “my religion forbids X.” Instead, the argument is that marriage in its essence is a comprehensive union of a man and a woman for the purpose of procreation and family — and this understanding, by definition, excludes same-sex unions. (It also excludes many other kinds of unions: polygamy, polyamory, incest of various kinds, opposite sex quartets, throuples, wed-leasing, pedophilia, and much more. In other words, this definition is an equal-opportunity excluder). The argument is that “X is not possible” or “X cannot exist.” And you can’t have a right to or religious liberty about something that doesn’t exist. This is vastly different than asserting that a certain religion’s moral teachings should be legally codified. Instead, what’s at stake is reality vs. make-believe. It would be akin to the government legalizing the status of “married bachelor” or “monogamous throuple.” Since marriage necessarily requires opposite sex relations, it cannot be same-sex. It is an implicit contradiction, and thus, to speak of “same-sex marriage” is an absurdity. Marriage revisionists are welcome to put forward alternate accounts of what marriage is (philosopher John Corvino has), but so far all of these revised definitions fail for one reason or another; and none of them provide any internal logic for objecting to polygamous, incestuous, pedophilial, or an assortment of other possible so-called marriage relationships. [4]

How does this relate to the civil rights issue? Once we realize what marriage is, we can properly define the civil right to get married. This means anyone, regardless of their age (except the very young), race, ethnicity, height, hair color, or gender can get married, and this right should not be infringed upon (except for perhaps severe circumstances). But of course the term “married” carries an implicit essence that cannot be changed, as I’ve just explained. This means that those who want to get married must be willing to participate in that particular institution, not create another institution entirely and call it “marriage.” The irony of the marriage debate in America is that the LGBT community has never been denied the right to get married, nor has any kind of “marriage equality” been denied them. Any self-identifying homosexual has always had the right to get married (i.e., enter into a heterosexual, monogamous, and permanent relationship). What they do not have the right to do is form any relationship they desire, self-christen it “marriage,” and then insist that everyone — including the federal government — recognize this relationship as marriage and bestow it with all the benefits and privileges given to real marriages. This is not inclusion into the institution of marriage; it is the recreation of marriage entirely so that true marriage is destroyed (legally speaking).

Now, homosexuals might argue that it is unfair to ask them to form heterosexual relationships when they are sexually oriented and attracted to the same sex. This is understandable, but irrelevant. The existence of marriage is not dependent upon one’s sexual desires or proclivities. The ability of an individual to form a marriage relationship is not dependent upon personal sexual preferences and orientation. If this were so, then no male could ever get married, for every man who is married is also attracted to other women. Yet this natural attraction to a plurality of women neither gives him the right to invite other women into his marriage nor cheat on his spouse. In addition, one’s sexual orientation does not legitimate a relationship (or marriage) in accord with those desires. If this were true – if your sexual orientation was the appropriate basis for legitimate and acceptable sexual behavior, relationships, and marriages – then no one could object to incestuous marriages, pedophilia relationships, polygamous unions, and every other sexual behavior or relationship that might flow from one’s natural sexual desires. Yet we do object to these relationships because we rightly recognize that they are disordered, immoral, and extremely harmful to those involved and society at large. So in sum, the civil right of marriage has never been denied to the LGBT community.

Let me give an example that might help make this clearer. Take the civil right to an education. This is a negative right that says every person has the right to seek to educate themselves, and that no one should prevent this person from attending high school, college, or other educational institutions. (Note: this is not the positive right to education which says everyone is entitled to an education at someone else’s expense). But a civil right to education requires that one actually be engaged in the activity of educating. This involves academic institutions, enrollment, classes, tuition, books, assignments, grades, teachers, and host of related aspects. In other words, there is a predefined understanding of what education is; and the civil right to education hinges upon that understanding. If someone insisted upon their civil right to an education, and then under that pretense bought a car, took a cruise, traveled the world, or went gambling in Las Vegas, we’d obviously agree that something is wrong, as these activities do not correlate to education. In the same way, the civil right to marriage correlates to a correct understanding of what marriage is, and not just any relationship we desire to be in.

Conclusion

Evans errs in assuming that same-sex marriages are metaphysically possible, when in fact they are not. And she also goes astray by wrongly situating the locus of the civil rights issue among competing religious traditions that the federal government should (or should not) arbitrate between. Instead, the locus of the debate is philosophical and legal, and surrounds the metaphysical question of the essence of marriage. Due to this, the government has an overwhelming responsibility to rightly discern the true nature of the institution of marriage and implement it in society for the purpose of human flourishing, even if it happens to violate the religious liberty of those who have a false conception of marriage. No one person or group have the right to foist a false reality upon everyone else through legislation or the federal courts, as the government is under no obligation to prop up, encourage, or endorse false realities. Yet the Supreme Court’s decision this past week is so tragic and dangerous precisely because the government has capitulated to this false reality. As a country, we are not simply embracing something that is wrong (since homosexual relations are immoral); we are engaged in creating and buttressing a false reality. We have entered a make-believe world of our own imagination and such pretending can only end in disillusionment and disaster.

Notes

[1] For introductory works on natural law theory, see J. Budziszewski, Written on the Heart: The Case For Natural Law (Downers Grove, IL: IVP Academic, 1997); idem, What We Can’t Not Know: A Guide, rev. ed. (San Francisco: Ignatius Press, 2011).

[2] Someone might complain that this definition defines same-sex marriages out of existence from the get-go. While this might appear to be what I’m doing, in fact the definition I’ve given is an answer to the question in what way is the marriage relationship different from all other relationships? In other words, what makes marriage unique? It is the conclusion of a whole previous line of argumentation that I can’t recount at the moment. See Girgis, Anderson, George for more details.

[3] For more on this, see What is Marriage?, 58-62 and the footnotes they reference; and Making Gay Okay, 143-153.

[4] What is Marriage? is essentially an extended essay on why the revisionist definitions fail. Read the whole book to see the depth and breadth of the argument.

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3 thoughts on “Understanding Rights and Same-Sex Marriage

  1. I like this. Thanks. My question is, how does this natural law conception of marriage rule out other man-woman relationships, such as pedophilia and incest?

    1. Hi Aaron, that’s a great question! Here’s what I’d say. Incest would violate anthropological correspondence. Above I stated, “The only way the union can be comprehensive is through the anthropological fact that men and women are distinct and complimentary in every way.” But in incestuous relationships the genes of the two individuals are too closely related to be distinct enough to be considered corresponding, even though its a male-female relationship. This fact is born out in the unfortunate physical diseases and ailments that befall children that are born from inbreeding. Pedophilia is more difficult to figure out. It could be that it would violate the procreational teleological aspect of marriage, but only if it involved prepubescent children. In these cases, it’s not that procreation and family would be possible if everything was working properly (as with infertility), it’s that procreation is impossible before puberty. So these pedophilial relationships can’t be ordered toward family life. The objection to this is what about couples who marry after menopause (i.e., the elderly)? Isn’t this just the opposite spectrum of a prepubescent marriage? Honestly, I’m not sure how to answer this objection; my conscience tells me that marriage to a prepubescent child is wrong, but marriage of the elderly is not. It could be that both could be considered marriages, but with prepubescent relationships coitus should be withheld until the woman has undergone puberty, which is a sign that she is now physically ready to accept male intimacy. Otherwise, sex before puberty would be to violate her or physically harm her. In this case it would again be an issue of complementarity, meaning, a prepubescent child cannot complement a fully developed adult.

      These answers may not be satisfactory. The natural law argument can only be pushed so far; it may be that with these two cases we do need to draw upon Scripture and divine revelation, although it’s interesting how our moral compass tells us these kinds of relationships are wrong without needing religious arguments. I’ll check around in the natural law literature I have and see if I can dig up any other answers. Thanks!

      1. Thank you. I appreciate the quick response. This whole thing I think is mind-blowing. I’ve only known about Natural Law for about 6 months after reading Edward Feser’s book The Last Superstition. I was writing my own blog on this issue and didn’t know how I would respond to the two charges in my question.

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