The debate about same-sex marriage often seems limited to two points of view. According to one, opposing the judicial invalidation of traditional marriage laws is tantamount to supporting segregationist racism. According to the other, it is simply absurd to believe that considerations of equal treatment favor recognizing same-sex marriages. Both of those views are wrong.
Civil marriage was instituted, let us concede, to safeguard the interests of children by endorsing and protecting the kind of stable, committed relationships that produce them and are suited to their upbringing. But there is no way to know in advance which couples can or will have children; we would hardly want county clerks to administer fertility tests or ask intrusive questions about people’s ability or intention to reproduce. So we made civil marriage generally available to sexually complementary couples. We did this without apparently taking notice of same-sex couples, let alone aiming to discriminate against them. Since traditional marriage laws had a legitimate purpose and were tailored to that purpose, there is no obvious reason for courts to invalidate them.
But equal treatment is both a legislative and a judicial concern. We can realize that a law that once seemed well designed could, in fact, be fairer. Reexamining marriage laws with this possibility in mind, we should register the following facts. First, civil marriage already includes a group of people — married, childless men and women — who are irrelevant to its child-centric purpose. Second, there is another group of people — committed same-sex couples who wish to marry — who have just as much reason to want the law’s recognition and protection of their relationships as married, childless men and women do. (Some same-sex couples are also raising children, much to traditionalists’ horror, but we leave this aside.) Third, couples belonging to either of these two groups have the same reasons and motivations, rooted in their love for each other, to abide by the standards of conduct that we traditionally associate with marriage, namely exclusivity and fidelity subsequent to a vow of permanent commitment. In light of all this, it is a matter of simple fairness to treat the two groups the same way, and legislators and voters should favor doing so.
Equal treatment is both a legislative and a judicial concern. We can realize that a law that once seemed well designed could, in fact, be fairer.
It may be true that, once they become actual parents, a couple acquires all the more reason to abide by the traditional standards of marriage. Now they will do so not only to fulfill their marital vow to each other, but also for the sake of their children. But even if they have no children, we can understand perfectly well why they would choose to make a vow of permanent and exclusive commitment. The intelligibility of this choice is all we need to justify their inclusion. They are not being conscripted into marriage, after all, but seeking it freely. And while there will be people who get married without intending to live by the traditional standards, this will be true whether we admit same-sex couples or not.
It may also be true, as traditionalists argue, that we would never have designed an institution from scratch solely to protect a certain category of amorous relationship. But neither did we have to safeguard the interests of children by protecting a certain category of amorous relationship. More directly, if more heavy-handedly, we might have given actual parents incentives to raise their children together and disincentives to abandon or neglect them. Instead we created an institution that of necessity was overbroad for its purpose — and so we ought now to make it fairly overbroad. (There might also be a public interest in endorsing monogamy apart from considerations of children’s interests — to reduce the incidence of sexually transmitted diseases, for example — but we leave this aside, too.)
Many traditionalists do deny that same-sex couples have any reason to adhere to traditional marital standards. This denial is usually based on the idea that their relationships have no value to begin with. We will reject two forms of this view below. For now, as a kind of intuitive test, simply imagine that some friend of yours had been cheated on by his or her spouse of the opposite sex and had confided this in you. How would you respond? Probably you would understand your friend’s sense of having been betrayed and offer condolences. Now imagine the same scenario, except suppose that your friend’s spouse were of the same sex. Would your reaction be terribly different? Would you say something like, “Well, your expectation of fidelity and indeed your whole relationship never made any sense to begin with, so what’s the big deal”? Many traditionalists are obliged by their principles to give such an answer. One understands why offense is given, too.
Traditionalists have a slogan to explain their opposition to recognizing same-sex marriages. They say that doing so will enshrine the idea that marriage is about the fulfillment of adults rather than the interests of children. This slogan is of a piece with their broader criticism of the sexual revolution, which they say has harmed children by encouraging adults to seek romantic fulfillment even when it conflicts with their responsibilities as parents.
As a sociological reality, this criticism is hard to dispute. But as an argument against same-sex marriage it rests on a false choice. Marriage and romance could, after all, be about both the fulfillment of adults and the interests of children; and where the two conflict, the interests of children (including unborn children) could trump the fulfillment of adults. Traditionalists must think that children have a trump card, or they would not be inveighing against the sexual revolution in the first place. But instead of specifically reminding parents of their responsibilities, traditionalists have sought something much more sweeping. They have become sexual counter-revolutionaries.
I think their quest is quixotic, but I understand its motivation. Restricting sexual relations to heterosexual marriage would cut off, at the first link in the causal chain, a large number and variety of bad outcomes for children. It would be highly efficient. But it would also rest on a one-sided and extreme view of human sexuality. It would suppress the reality that committed romantic relationships are fulfilling for adults and that this fulfillment can be sought conditionally upon adults’ willingness to safeguard the interests of any children (including unborn children) who come to be in consequence of their relationships.
Instead of specifically reminding parents of their responsibilities, traditionalists have sought something much more sweeping. They have become sexual counter-revolutionaries.
Another way of saying this is that sexual counter-revolutionaries are telling a noble lie. The lie is that it is immoral to think of sex and marriage as anything other than child-directed, and its motivation is that, if we allow people to think otherwise, some parents will falsely analogize their own situation to that of people who have no children. The noble lie thus forecloses a piece of irrationality on the part of the public (which is always the justification of noble lies). The trouble with noble lies is that sooner or later people see through them. When they do, they tend to have revolutionary overreactions. And when that happens, what is needed is not a complete reversion to the old view, but a synthesis of what was right in that view with what was right in the reaction against it.
In their ideological absolutism, many traditionalists today stand in the way of such a synthesis. Their position on same-sex marriage is tragic, in that they have taken a stand against burgeoning social endorsement of commitment and sexual exclusivity as ends in themselves. Same-sex marriage is, in this sense, not the fulfillment of the sexual revolution but a repudiation of its free-love ethic. This story of two men who persuaded a county clerk to marry them in 1975 perfectly illustrates the point. “Not to get sloppy, but he meant everything to me, and I meant everything to him,” says the surviving partner. As they sought legal recognition of their union, they turned to gay-rights activists for support but were rebuffed: “This revolution is not about relationships,” they were told. Today, many heirs of those activists are endorsing a domestic ideal that, in all matters but sexual complementarity, harks back to the 1950s of blessed memory. Rather than celebrate the retrogression, sexual counter-revolutionaries tell them they are not welcome.
Having rejected the idea that opponents of same-sex marriage are no better than racial segregationists, what should we think of them? So far, only that they are wrong. Certainly they can, without evincing any animus toward gay people, make their case by way of bloodless legal abstractions and sociological speculations. Those reasonings often overlap, of course, with the belief that same-sex relationships are morally wrong. Here too the comparison with racism is unfair, in that having sexual relations is, unlike having a certain skin color, a decision, and therefore a proper subject of ethical debate.
But one can push that point only so far, given the reality of congenital sexual orientation, i.e., the fact that, for many people if not for all, the kind of emotional and physical attraction that precedes sexual intimacy is by nature limited to or predominately directed toward members of a particular sex. What traditionalists must in honesty be said to reject is, if not a deep aspect of personal identity per se, then the expression of a deep aspect of personal identity. And the significance of that rejection is often minimized in ways so glib and irrelevant as to suggest that those who offer them refuse to grapple seriously with the issue — for example, their facile observation that there are many people who, for whatever reason, are unable to achieve romantic fulfillment (as if being unable to achieve it were the same thing as being told not to try), and their facile observation that “we are all sinners” (as if what counts as a sin were not in question here).
There is something that traditionalists could do to make their views seem less cruel and arbitrary: They could return to Christianity’s original, austere understanding of the purpose of sex.
There is something that traditionalists could do to make their views seem less cruel and arbitrary: They could return to Christianity’s original, austere understanding of the purpose of sex. The early Christians hotly debated whether marriage even between a man and a woman should be endorsed; many thought celibacy was to be preferred. And even though marriage was finally recognized as a sacrament, the mainstream of the early Church did not think of marriage and sex as a way of expressing love and affection at all, but rather regarded procreation as its sole purpose. In From Shame to Sin, Kyle Harper presents Clement of Alexandria as the spokesman for this view:
Clement believed that in Christian marriage the couple’s sexual intimacy would be aimed exclusively at procreation, so that it could even escape the nets of desire and pleasure. . . . These sentiments appear most clearly in Clement’s Miscellanies, which express his deepest teachings. “With marriage, food, and other things, let us do nothing from desire, but only will those things that are necessary. For we are not children of desire, but of will. And so the man who marries for procreation should practice continence, not even desiring his wife, whom he should love.” Procreation should be sought with a reverent and controlled will. For Clement, proper sex was solemn, cool, ratiocinative. Marriage itself was encratic.
The man would love his wife, yes, but sex would be abstained from unless specifically intended to get children. This is certainly a possible view. If you hold it, and are open and consistent about holding it, then you won’t seem to be denying a source of fulfillment to same-sex couples that you allow to couples of opposite sexes, since you will claim that nobody has anything legitimately to want out of sex other than children.
But that is not how most Christians today, even the traditionalists among them, think and feel about sex. In the main they do think, tacitly if not explicitly, that romantic love is important and that sex is, for married men and women at least, an important way of expressing it. And this is not a result of the sexual revolution, as traditionalists sometimes maintain. One wants to give them some Elizabethan love poetry; one can hear John Dowland taking up his lute in protest.
The fact is that romantic love has long been the primary means by which nature, shaped by culture, has induced to become parents most of the people in our civilization who have been parents. They have not, like Clement’s followers, or like some monarch thinking about alliances and succession, made a solemn, cool, ratiocinative decision to form a reproductive partnership. The further fact, our full awareness of which is relatively recent, is that, in some people, nature has largely or exclusively restricted the type of fulfillment provided by romantic love to relationships with members of the same sex. No one should pressure them to seek that fulfillment. Some might find celibacy or a Clementine marriage more appealing. But to legalistically forbid them the very possibility of romantic fulfillment even as the masses of Christendom enjoy it and take it for granted cannot but seem an unlovely pharisaism, however ancient or canonical its provenance.
Same-Sex Marriage and Natural Law
As noted, many traditionalists deny that a same-sex couple can have the same reasons to abide by traditional marital standards as a childless man and woman can. We now consider two ways of making that denial. Both are natural-law arguments centering on the human reproductive function. Both assert that, in virtue of that function, sexual relations between a man and a woman can be valuable while those between two members of the same sex cannot.
Why not? Here the views diverge. The first, the traditional natural-law argument, holds that from the function of a thing we can know what makes it good. A good watch (to take a standard example) keeps time; a good bridge doesn’t fall down. They are good because they perform their function well. The argument is then extended to biological function. From the fact that human beings have a reproductive function, it is argued, the chosen exercise of that function, under conditions suitable to the rearing of children, is good in a way that no other kind of sexual relationship can be.
The main objection to this argument (which is made by the second type of natural-law theory, of which more anon) is that you cannot derive an ought from an is. This line of criticism originated with David Hume, and I think it is sound. Consider the issue this way: If you are deliberating over some choice, you are not asking yourself what is the case. You are asking yourself what to make the case. This is just what it means for your decision to be a decision; this is just what it means for you to be free. And so having a biological function does not give someone a reason to exercise it when the very question he asks is whether he should exercise it.
In fact, the question whether he should exercise it corresponds more closely to the question whether he should buy a watch or build a bridge in the first place than to the question what makes a watch or a bridge good. Someone might after all have reasons not to buy a watch or build a bridge. If he does want a watch or a bridge, he’ll want it to function properly, of course — but only because he’s already taken the result of that function as his ought. Whether to do so with the exercise of the reproductive function is the very question he now asks. The natural lawyer answers as if he were some kind of free and self-conscious and organically arising watch debating whether to keep time. And actually even that way of putting things probably makes the natural-law argument seem stronger than it is; probably it still trades on our thoughts about normal watches, which we do expect to keep time, and do build and buy for that purpose. Why shouldn’t a watch keep time? It is a mere instrumentality. But we are not instrumentalities. If there were a free and self-conscious and organically arising watch among us, there would not be anyone to whom it was related as a watch is to its owner, and the fact that it could keep time would not answer its question about whether it should.
So in comes the second type of natural-law theory, known as new natural law, to save the argument. This theory says that someone should exercise his reproductive function (under conditions suited to the rearing of children) not because of the mere fact that he has it, but because its exercise is fulfilling.
In general the theory claims that there are certain “basic human goods” that are fulfilling, or the absence of which hinders fulfillment, and so people should seek these basic goods or at least do nothing incompatible with them. Now you might think that the ought/is problem returns from its banishment to menace us anew. “From the fact that something is fulfilling,” you might ask, “why ought I to seek it?” And in a sense, that is a real question. There could be someone who said, “I do not want to be fulfilled,” and we do observe people who seem to act in knowing self-destruction or nihilism. There is not much we can say to them. But those who do seek fulfillment are already standing on the near side of the gulf between is and ought: They have taken fulfillment as their ought, and so the recognition that something is fulfilling provides a further and more specific ought. Arguments of this sort must appeal ultimately to self-evidence, since there is no way of proving that something is fulfilling to someone who just does not see that it is. They will always terminate in axiomatic suggestions.
To return to our topic, then, the new natural lawyers make the following axiomatic suggestion. They say that it just is a basic form of fulfillment for people to engage in the reproductive act, provided that they have taken a marital vow of exclusive and permanent commitment. This is said to be fulfilling because it makes possible a multi-leveled union — both mental and bodily — of the two. Bodily union is here understood in terms of reproductive function: A man and a woman can jointly become its single subject (as Patrick Lee and Robert P. George have put it in their book Conjugal Union, whose exposition of natural-law arguments I have loosely followed here). And since a same-sex couple cannot likewise become the single subject of the reproductive function, their relationship cannot provide the same kind of fulfillment.
Now if this argument is to work, it cannot be saying that sexual relations between married men and women are fulfilling because they produce children; for if that is so, then the fulfillment is unavailable to married men and women who cannot or do not conceive. The argument also cannot be saying that sexual relations between married men and women are fulfilling because they express and deepen commitment borne of romantic love; for if that is so, then we must grant that the fulfillment is open to same-sex couples. What the argument has to say, if it is to identify a source of fulfillment available to all married men and women but not to same-sex couples, is that the fulfillment inheres in the mere fact that, in coition, a married man and woman perform the behavioral component of the reproductive function.
I think the implausibility of this will suggest itself if we think for a moment about the other biological functions. It does not seem that the exercise of any of them is intrinsically fulfilling. Many are necessary to our health or very life, and so there is a sense in which all fulfillment depends on them. But this does not show that their exercise is itself fulfilling; and our health and life do not depend on the reproductive function. The involuntary functions do not even have a behavioral component in which to find fulfillment. Digestion has a behavioral component, eating, and we sometimes find its exercise instrumentally valuable as a means of experiencing sensory pleasure. But the new natural lawyers are not saying that sex between married men and women is instrumentally valuable. They are saying that it just is fulfilling, end of story, no further argument needed.
Here is my alternative suggestion: Having and raising a child with someone just is fulfilling, end of story, and the expression and deepening of romantic love just is fulfilling, end of story, and the overlap of these two kinds of end-of-story fulfillment is a very happy situation indeed. But the behavioral component of the reproductive function, as exercised within marriage, is not, in itself, fulfilling. It is valuable only instrumentally, in relation to one or both of the intrinsically fulfilling things that I have named. Not only is this alternative suggestion of mine more consistent than that of the new natural lawyers with our general view of biological functions as instrumentally valuable, but it is also more securely grounded in aspects of human experience whose intrinsic worth seems to be self-evident.
The implausibility of the new-natural-law argument will become even clearer if we reflect on its proffered explanation of why permanence, exclusivity, and fidelity are supposed to be normative for married men and women who are childless. The explanation is that since these couples’ type of relationship would be fulfilled by having and raising children together, the standards appropriate to having and raising children together apply to them whether they actually have children or not. But why should this be? Why should the couple live in a way appropriate to raising the children they do not have?
One kind of answer might invoke the will of God. A second kind of answer might say that childbearing and childrearing are the purpose of sex in some metaphysical sense. It could then go on to say that — this purpose being, so to speak, woven into the very essence of sex — people should act consistently with it whether they have children or not. (I think this answer would run into is/ought problems again, with the added complication that the is now consists in a vague speculation that admits of neither empirical nor formal verification, but never mind.) The new natural lawyers clearly do not want to talk in these ways. They certainly don’t want to talk about the will of God, and even trumpet the secularity of their argument. And while they feint at something like the second answer when they speak of childbearing and childrearing as that which would fulfill a husband and wife’s bodily union, this notion is not developed in a way that explains its supposed normativity.
All of which would seem to be by design. The whole argument appears to have been crafted especially to avoid grounding in revelation or metaphysics an ethics that has traditionally been grounded in revelation or metaphysics. It thereby offers traditionalists who already accept the ethics on the basis of religious or metaphysical belief a way of talking about that ethics without mentioning those more robust beliefs. It also serves as a lowest common denominator in terms of which traditionalists of varying stripes can agree to express themselves. All of this is immensely useful as marketing. But it comes at the price of reducing to the status of a not-very-persuasive suggestion the ethics that it serves to market.
Let me close by mentioning a few miscellaneous problems of natural-law and other traditionalist arguments against same-sex marriage.
New natural lawyers put a lot of weight on the question, What kind of good is realized in the sexual dimension of same-sex relationships? What kind of good do these couples pursue together that, say, two roommates in a non-sexual relationship cannot also pursue?
We have denied that the new natural lawyers themselves have an adequate answer to this question if it is posed about married men and women. But there are two further problems with it.
The first is the question’s mistaken assumption that the value of a marital relationship consists in a good that is conceptually distinct from the relationship itself. What I mean is this. If you ask a married couple what’s good about their marriage, the answer they’re supposed to give, according to the new natural lawyers, is “the multi-leveled mental and bodily union that it realizes.” But this answer, in its generality, leaves out what is presumably most important to the couple: their particular relationship to each other as individuals. In a similar way, if you wondered why two friends matter to each other, you would not get to the heart of things by observing that they provide each other someone to play chess and argue about politics with; nor would you understand the nature of a child’s love for its parents if you noted that the child receives food and shelter and various other kinds of support from them (important though this be).
All of these answers make it sound as if anyone who provided the proper category of good would do equally well. But spouses, friends, and family members are not substitutable in the way that roommates, colleagues, and employees are. And that is why the question “What kind of good does your relationship with this person realize?” makes sense when we ask it about someone’s roommate, colleague, or employee but seems largely beside the point when we ask it about someone’s spouse, friend, or family member. The categorical description may be a useful way of classifying relationships, and someone might even set out to form a relationship that would fit the category — one can seek a friend, or a spouse. But once the relationship exists, its value is not primarily categorical. This does not mean, however, that the value of relationships between spouses, friends, or family members consists merely in their emotional attachment to each other. Rather, it must be understood holistically. In the case of friends, for example, intellectual and emotional affinity leads to shared activities and pursuits, which in turn deepen intellectual and emotional affinity, which in turn leads to further shared pursuits, etc. The good of the friendship to the friends who constitute it consists irreducibly in this entire complex as it exists uniquely between them. It is not to be found in some agenda of activities absent which their friendship would have no point.
The second problem with the question is its blindness to the uniqueness of romantic love, and to what might be called the psychological function of sex in deepening the bond between people who share such love. Their relationship grows out of a qualitatively distinct kind of mutual attraction. This attraction is directed irreducibly toward the beloved as an individual, is expressed and deepened by sexual intimacy, and helps motivate, in marriage, a decision to make a life together. Once again, the value of the relationship consists holistically in this entire complex. And even in the case of activities that roommates and spouses might have in common, the unique kind of love that exists between spouses makes possible a greater level of commitment than would exist between roommates. You would not, for example, expect roommates to care for each other when ill as solicitously as spouses do, or to aid each other as loyally in the pursuit of each other’s goals. A sufficiently fine-grained description would reveal all kinds of differences between the daily interactions of spouses and those of roommates even if both sets of interactions fit the same more general description. The fine-grained differences are not trivial simply because they are hard to sketch in a few simple schematic strokes.
This observation suggests a further weakness of traditionalist arguments: their tendency to dismiss any mention of the uniqueness of romantic love as meaninglessly subjective talk about an unknowable mental state — as if we could understand it only by reading people’s minds. This is truly absurd. Love (in all its distinct varieties) is not the private experience of individuals who remain secrets to each other. It is shared, and manifested to others, through characteristic sorts of observable conduct (including speech) whose meaning we can perfectly well understand. Disputing this is on par with asking “But how can we know from your fighting-behavior that you two are really mad at each other?” and “But how can we know from your speech-behavior that you two are really communicating?”
Finally, a word on the oft-heard claim that if we recognize same-sex marriages we’ll also have to marry siblings, and groups of a hundred and three, and adults to children, and humans to invertebrates, and so on.
Members of group relationships, whatever we may think of them, manifestly have not made the same kind of choice as have those in exclusive commitments, and so there is no equal-treatment basis for their inclusion in marriage. Remember, the equal-treatment argument we outlined above does not assert that marriage is about any kind of romantic love. It asserts that marriage is about a particular form of such love — faithfulness and exclusivity subsequent to a vow of permanent commitment — that is already partially included under traditional marriage laws. (Let us note in passing the ridiculousness of speaking of an “orientation to polygamy,” as traditionalists sometimes do, unless this means trivially that anyone might feel more than one attraction at a time, in which case we are presumably all so oriented.)
There is a sense in which the other types of relationships traditionalists scare us with, even if they were exclusive, would also not involve the same kind of choice as does a romantic commitment of two unrelated adults: They would fall short, for one or both parties, of being chosen in full freedom. In the case of family members, for example, an irrevocable and unchosen bond between the two already exists, and in that sense they cannot really give themselves to each other. That is why we see incest as a perversion of a preexisting relationship. As for a child, it does not possess a sufficiently developed mind and will with which to give consent to a sexual relationship. That is why we think such a relationship is exploitative. The specific ways in which these relationships fall short of full freedom — along with the unique intensity of sexual intimacy — in turn explain the primary harms that they intrinsically risk causing (for example, by undermining impartiality and stability within families, or by psychologically damaging children).
In any case, if you want to account for the special opprobrium we reserve for such things, you will have to offer some explanation of what is specifically wrong with them. The natural-law arguments do not do this. All they say is that any type of sexual relationship that is not behaviorally open to procreation and suited to childrearing is, for that reason, wrong. But nobody really thinks that all such relationships are equally wrong. Unless this perception is some sort of mass delusion, there must be categorical differences on the basis of which to distinguish our categorically different attitudes. As an argument against same-sex marriage, the refusal to admit any such differences looks rather worse than a debater’s point or a failure of thought. It acquires the air of an insult.
— Jason Lee Steorts is the managing editor of National Review.