Why fight same-sex marriage? Even in America, where the outcome is not yet decided, there appear to be good reasons not to. The optics are poor and the mandate seems uncertain. Prospects for victory appear slim. Resources that might be reserved for more important fronts—abortion, for example—are squandered in defense of an institution to which our modern urban society is no longer committed. Industrial economies, reprogenetic technologies, and new ideas of autonomy—not to speak of new moralities—have called into question many of the assumptions on which that institution has always been based.
Moreover, it is perfectly plain to anyone following the fight closely that same-sex marriage is merely a proximate goal—something to be abandoned as quickly as it was invented, when its work is done. Can it really be worth fighting then?
The answer is yes, for reasons that become clear when we have taken account of the work it is meant to do.
And what is that work? Positively, to normalize homosexual relationships. Negatively, to de-normalize heterosexual monogamy. (Those who claim that they want homosexual relationships to be more like monogamous heterosexual relationships may or may not be sincere, but they represent no significant constituency.)
Now, some think that this larger project can be left to market forces. But others think that heterosexual monogamy, as the source of widespread discrimination against alternative sexualities and lifestyles, must be repudiated as a social standard. Same-sex marriage is the tool of choice for doing that. By redefining marriage as a union of two (or more) persons, rather than as the union of one man and one woman, the offending norm is removed from the body politic with a single incision. Afterwards, a wider assault on homophobia and heterosexism can follow.
Tools need to be crafted, of course, and social debates carefully framed. That has already been done with remarkable skill. The knife that is poised to remove the traditional definition of marriage from America has been honed at both edges.
The one edge is shaped by an appeal to our best instincts—the love of liberty, and of liberty in love. This is the emotive edge, flashing with winsome pictures of same-sex families and disturbing anecdotes about marginalization. It also plays on feelings of repression and guilt. As one young woman (quoted in an Associated Press story) put it: “They love and they have the right to love. And we can’t tell somebody how to love.”
The other edge is the harder, more rational edge, shaped by an appeal to autonomy and equality. Not content with the anecdotal, it drives home the case for rights—rights not merely to love as one sees fit but to equal recognition of that love by the state. Hence also to recognition of the wrong, both morally and constitutionally, of the traditional definition of marriage that privileges the heterosexual norm.
In America, this knife was first wielded in Massachusetts by the 2003 Goodridge court, which concluded as follows:
Barred access to the protections, benefits, and obligations of civil marriage, a person who enters into an intimate, exclusive union with another of the same sex is arbitrarily deprived of membership in one of our community’s most rewarding and cherished institutions. That exclusion is incompatible with the constitutional principles of respect for individual autonomy and equality under law.Massachusetts later sued the federal government for attempting, through the Defense of Marriage Act (DOMA), to enshrine in law the status quo ante. The suit claimed that “in enacting DOMA Congress overstepped its authority, undermined states’ efforts to recognize marriages between same-sex couples, and codified an animus towards gay and lesbian people.” Not wishing to be implicated in that animus, the White House has declined to defend DOMA, the fate of which has yet to be decided. If DOMA fails, same-sex marriage will succeed in the courts of state after state, and with it the de jure normalization and denormalization of which we have spoken.
The Bonds of Marriage
Alarmed about all of this, various champions have sprung to the defense of marriage, which they are now reduced (in a concession I regard as a mistake) to calling “traditional” or “historic” marriage. Over the past decade or so, they have tried to re-frame the debate by highlighting the abiding contributions of that institution, while avoiding as far as possible the appearance of animus against homosexuals.
Those contributions are manifold, and a good deal of emphasis has rightly been placed on the positive social and economic outcomes that marriage continues to produce in contemporary society. But at the center—indispensable to the rest—is the service marriage does to the bond between a child and its natural parents. “Sex makes babies, and babies need a mother and a father,” as Maggie Gallagher (an indefatigable champion) likes to say. Marriage is designed to make it more likely that children will have and keep their parents.
Same-sex marriage proponents, for their part, are forced to set aside this concern. On their view, the parent-child bond lies beyond the immediate purview of marriage, as does the particular sexual act that produces children. Marriage is simply the formalization of an intimate relationship between adults. If those adults happen to produce or obtain children, well, that is another matter. Moreover, their bond with those children does not require any particular family structure to support it; good outcomes can be had from diverse family structures.
The debate about what constitutes a family, and about outcomes for children, is an increasingly lively one. It is largely driven, however, by the normalization/de-normalization agenda that underlies same-sex marriage. The irony of this can hardly be missed. For same-sex marriage, as courts in North America have made clear, is predicated on a denial of procreation or child-rearing as a definitive interest. Marriage is about adult bonding, and adult bonding is all there is to marriage.
The champions of marriage respond that they are very much in favor of adult bonding, which the institution is indeed meant to serve. That bonding, though good in itself, is for a purpose beyond itself, however. It is for a purpose of public as well as private interest, the purpose of procreation and child-rearing. It is not necessary, they point out, to hold that procreation constitutes the only good of marriage in order to recognize that procreation is an essential good of marriage. Nor, for that matter, is it necessary to hold that a childless marriage is not a marriage, at least where the childlessness is not deliberate—a matter rightly shielded from public scrutiny. But they insist that to exclude procreation as an essential or defining good makes nonsense of marriage.
Divine & Human Rights
Surely that is correct. The third-century Roman jurist, Modestinus, captured the common understanding of marriage with the following definition: “Marriage is the union of a man and a woman, a consortium for the whole of life involving the communication of divine and human rights.” This union and these rights exist, not merely for their own sake, but also and especially for the sake of the inter-generational concerns of progeny and property; with a view, that is, to the conditions necessary for the founding and flourishing of the family. The rights involved are divine as well as human because marriage is generative, and hence pre- as well as pro-political; because what is founded through marriage is, in the twentieth-century language of the Universal Declaration of Human Rights, “the natural and fundamental group unit of society.”
The same elements that found expression in Modestinus perdured and prospered in the Augustinian understanding of marriage as an institution entailing, not one, but three interwoven goods: proles, fides, et sacramentum—procreation or fruitfulness, loyalty or faithfulness, and bonding or sacred union. That societies shaped by this understanding took the unusual step of making marriage monogamous testifies to the seriousness with which each of these goods was regarded, precisely in its service to the others. It was by developing them in their mutuality, moreover, that heterosexual monogamy (to use the language of its detractors) created the conditions for the new and deeper respect for women and for children that until recently has characterized the West.
But marriage for some time has been under feminist attack for its putative institutionalization, in the name of divine rights, of oppressive patriarchal tendencies. This attack—coordinated, as it now is, with a Rawlsian assault on religious or comprehensive doctrines in the public sphere—has helped create a very different set of conditions, the conditions necessary for the advent of same-sex marriage. And same-sex marriage, by eliminating the first good (proles), has begun to unravel the whole fabric of marriage, setting up something else in its place: an institution not intrinsically connected to the family, or at all events not connected to the natural family. The divine and human rights belonging to marriage are thus beginning to disappear, as I want now to make clear.
A Society Very Small
“Everyone has the right to marry and to found a family,” says the Universal Declaration, and the family thus founded “is entitled to protection by society and the State.”
Parenthetically, we should observe that “everyone” really does mean everyone, though of course not everyone wills to marry or is able to do so. It is ludicrous, then, to propose that same-sex marriage expands the pool of those who have a right to marry. It does no such thing, since everyone already has that right. As I pointed out some time ago in Divorcing Marriage, only if marriage is redefined as a union of persons, rather than the union of a man and a woman, is it possible to argue that homosexuals have been “barred access” to marriage—which evokes the question, why change the definition?
It does no such thing, moreover, since what same-sex marriage offers, which has naught to do with founding a family, is indeed something other than marriage, as Girgis, George, and Anderson ably showed in their article, “What Is Marriage?” in the Harvard Journal of Law and Public Policy (2010). Same-sex marriage is simply a variant of what Elizabeth Brake calls “adult care networks,” which can be made available in virtually any size or shape (“Minimal Marriage,” Ethics, 2010).
Pace Brake, we should observe also that when a family of some description is founded by a same-sex couple, it is always founded by violating the natural parent-child bond that marriage is intended to nurture and protect. It deprives the child, whether in the same way that divorce does or in some more innovative technological way, of its prima facie right to its own father and mother. But we should notice something else as well, and not merely parenthetically—something too little noticed either by the detractors or by the champions of marriage. Same-sex marriage violates the natural parent-child bond in every family, and the right of the family to protection by society and the state.
How so?
In Rerum Novarum Pope Leo XIII rightly described the family as “a society very small . . . but none the less a true society, and one older than any State,” with “rights and duties peculiar to itself which are quite independent of the State.” This society, “founded more immediately in nature,” is what the Universal Declaration has in mind when it speaks in article 16 of the family. The family’s status as “natural”—that controversial adjective is deployed only in this one specific article—allows it a certain priority over civil society and the state. The latter share an obligation to protect the family, but the family is not at their disposal.
Same-sex marriage dispenses with all of that, however. By excising sexual difference, with its generative power, it deprives itself of any direct connection to nature. The unit it creates rests on human choice, as does that created by marriage. But whether monogamous, polygamous, or polyamorous, it is a closed unit that reduces to human choice, rather than engaging choice with nature; and its lack of a generative dimension means that it cannot be construed as a fundamental building block.
Institutionally, then, it is nothing more than a legal construct. Its roots run no deeper than positive law. It therefore cannot present itself to the state as the bearer of independent rights and responsibilities, as older or more basic than the state itself. Indeed, it is a creature of the state, generated by the state’s assumption of the power of invention or re-definition. Which changes everything.
A Tool of the State
Six years ago, when same-sex marriage became law in Canada, the new legislation quietly acknowledged this. In its consequential amendments section, Bill C-38 struck out the language of “natural parent,” “blood relationship,” etc., from all Canadian laws. Wherever they were found, these expressions were replaced with “legal parent,” “legal relationship,” and so forth.
That was strictly necessary. “Marriage” was now a legal fiction, a tool of the state, not a natural and pre-political institution recognized and in certain respects (age, consanguinity, consent, exclusivity) regulated by the state. And the state’s goal, as directed by its courts, was to assure absolute equality for same-sex couples. The problem? Same-sex couples could be parents, but not parents of common children. Granting them adoption rights could not fully address the difference. Where natural equality was impossible, however, formal or legal equality was required. To achieve it, “heterosexual marriages” had to be conformed in law to “homosexual marriages.” The latter produced non-reproductive units, constituted not by nature but by law; the former had therefore to be put on the same footing, and were.
The aim of such legislation, as F. C. DeCoste has observed in “Courting Leviathan” (Alberta Law Review, 2005),
is to de-naturalize the family by rendering familial relationships, in their entirety, expressions of law. But relationships of that sort—bled as they are of the stuff of social tradition and experience—are no longer family relationships at all. They are rather policy relationships, defined and imposed by the state.Here we have what is perhaps the most pressing reason why same-sex marriage should be fought, and fought vigorously. It is a reason that neither the proponents nor the opponents of same-sex marriage have properly debated or thought through. In attacking “heterosexual monogamy,” same-sex marriage does away with the very institution—the only institution we have—that exists precisely in order to support the natural family and to affirm its independence from the state. In doing so, it effectively makes every citizen a ward of the state, by turning his or her most fundamental human connections into legal constructs at the state’s gift and disposal.
In Nation of Bastards I have tried to provide a larger account of this, and to show how it leaves the parent-child relation open to increasing intervention by the state. The current cover for that intervention is the notion of children’s rights—meaning, far too often, the right of the child to whatever it is that the state, acting on behalf of adults other than its parents, wants it to have: a good education in state ideology, for example, which these days includes “diversity training” in “alternative family structures.”
That should surprise no one, for if marriage is not procreative, it is not educative either. Where is the educative authority to be transferred, if not to the state, whose pater familias power increases as the rights and freedoms of the natural family diminish? And what will the state do with its newfound power, if not use it to undermine further the sphere of the family, and the sphere of the church or religious community as well—the two spheres where “divine and human rights” independent of the state are located?
Accelerated Unraveling
I spoke of an unraveling. Those who point to places like Canada as counter-evidence—gleefully observing, in their own preferred metaphor, that the sky has not yet fallen in jurisdictions with same-sex marriage—either take others for fools or make fools of themselves. With an institution as basic as marriage, one must think in terms of centuries, not mere months or years.
There are, however, signs of a certain acceleration. It took some two hundred years for Jeremy Bentham’s essay on pederasty, which first proposed that objections to homosexual acts were rooted “only in prejudice,” to find political expression in the demand for same-sex marriage. (Is it not Bentham’s voice that we hear in the charge that DOMA “codifies an animus towards gays and lesbians”?) It has not taken long at all for activists in this tradition, aided by a development we will touch on later, to produce the still more radical Yogyakarta agenda, which they are presently trying to entrench at the United Nations and impose on states worldwide.
The Yogyakarta Principles on the Application of International Human Rights Law in Relation to Sexual Orientation and Gender Identity was crafted in 2006 as a master plan for the next phase of the war on heterosexual monogamy. The document dispenses, as does same-sex marriage legislation, with the binary logic of male and female that has hitherto governed human society. It presupposes instead the very different binary of homosexual and heterosexual orientation—a binary that can more easily be cracked and broken down into a kaleidoscope of gender identities. It then reads into a long list of human rights, including the right to found a family and the right to education, a warrant, or rather a demand, for the protection and promotion of the interests of “people of all sexual orientations and gender identities” (emphasis added).
What this means in practice is an all-out assault, in every sector of society, on heterosexism or heteronormativity; that is, on anything that seems to privilege the male-female binary or the nuclear family.
Here in Quebec there is even a government white paper mapping out the strategy for la lutte contre l’homophobie et l’hétérosexisme. Same-sex marriage, it says, served to “consecrate” the legal equality of same- and opposite-sex couples; it is time now to press on to full social equality by eradicating all forms of heterosexist bias. The commandments imperiously delivered to the nations at Yogyakarta, by a self-declared panel of experts, thus find local expression in a policy replete with warnings about “systemic investigations” of infractions and “rigorous monitoring and assessment mechanisms.”
There is, then, a further vital reason why same-sex marriage must be vigorously contested, namely, that no peace is to be had by capitulation. Like it or not, the great struggle is under way. Marriage, if you please, is the Sudetenland, and its concession is the precursor to a cultural Blitzkrieg.
Deconstructing “Orientation”
To be sure, there are weapons in the arsenal of the Yogyakartans that are prone to misfire. Take, for example, the term “orientation.” The main task of that term has been to mediate the transition from the male–female binary to the heterosexual–homosexual binary. For that strategic purpose, it has maintained the aura of a hated naturalism: Orientation, like sex, is something fixed by nature, and can therefore compete with sex as a fundamental consideration in law and public policy.
But in the present phase, the term has new work to do. It is to be understood (so Yogyakarta tells us) as referring “to each person’s capacity for profound emotional, affectional and sexual attraction to, and intimate and sexual relations with, individuals of a different gender or the same gender or more than one gender.”
Which is to say, it is to become a more malleable term, capable of taking as an adjective “each” or “all,” not merely “both.”
But “each” and “all” are dangerous adjectives. Pedophilia, for example, is an orientation, or so the psychologists tell us. And orientations are now constitutionally protected, not to say politically celebrated.
How then can we continue discriminating against pedophiles, which clearly we do?
Pedophiles naturally, hence in some sense appropriately, desire sex with children. Children, on the other hand, being vulnerable in various ways, need to be protected from sexual advances by adults. So we tell pedophiles that they must restrain themselves, or find other outlets for their sexual urges. Which is discriminatory. A parliamentary committee in Canada recently found itself being backed into this very corner, and the panic was palpable.
We can try to justify the discrimination by proceeding to a balance of harm argument, of course, but we cannot then avoid the implication that there exists no inviolable right to sexual self-expression or indeed to public approval of a so-called orientation. And if that is true for pedophiles—perhaps for consistency we should call them pedosexuals—it is true also for homosexuals and heterosexuals. There may be, or arise, real and present dangers to society that justify repression of one or both of the latter, as of the former; and the same is true for any other tendency or orientation.
Unfolding the Logic
Alternatively, we can attack one of the premises, so as to invalidate the conclusion altogether. We might attack the first premise by saying that pedophilia is unnatural and immoral; that it is, in itself and as such, an illegitimate attraction, a morally and psychologically misdirected orientation. That indeed is the traditional view, but of course the traditional view does not recognize orientation as a protected category in the first place. To say that an orientation may be misdirected or illegitimate is to say that it cannot serve, as a person’s sex serves, to qualify one for legal protection. In other words, to attack the first premise is to fall back into the old biological objectivism and into the despised public morality of a pre-Benthamite era.
Perhaps, then, we are not prepared to attack the first premise; recognizing that, if we do attack it, we must either show that pedophilia is not really an orientation at all (but what then is an orientation?) or be prepared to overturn the jurisprudence and legislation entrenching orientation as a protected category. In that case, we may prefer to attack instead the second premise, and avoid in that way the troublesome and discriminatory conclusion—restrain yourself or else!—that puts pedophiles in the position that homosexuals, or for that matter philandering heterosexuals, once were in.
Some attack the second premise only from the perimeter, so to speak, arguing for a narrower construal of the word “children,” that is, for a lowering of the age of consent; but that only postpones the problem rather than solving it. Others attack it at its core. Children, they say, may benefit from sex with adults; it depends how the pedophile handles the child in question.
This view is certainly not new, but today it is voiced much more openly than ever it was, because it is the only view that is actually consonant with the unfolding logic of our jurisprudence and legislation. It is the only alternative to admission of error. Nevertheless, it generates profound discomfort, and even meets with firm resistance, because it penetrates to the very bedrock of natural law. Bringing into view the problem of pedophilia, hidden in the coils of the term “orientation,” is an uncomfortable reminder that we can and do tell people how to love.
A More Glaring Problem
Orientation may be a vulnerable point in the vocabulary of the Yogyakartans, just as the “arbitrary exclusion” argument is in the reasoning of the Goodridge court. But before attempting to probe such vulnerabilities in public debate, it behooves the supporters of marriage to face a still more glaring weakness in their own position. I refer, of course, to the problem of contraception.
Elizabeth Anscombe foresaw the difficulty even before it arose. Already in 1968, in the midst of the furor surrounding Humanae Vitae, she delivered a paper in Toronto that laid bare the fuller significance of contraception—of the “new offer” of sex without children that would make nonsense of marriage. In a later version of the paper, published in 1975 as “Contraception and Chastity,” she asked with disarming frankness:
If you can turn intercourse into something other than the reproductive type of act (I don’t mean of course that every act is reproductive any more than every acorn leads to an oak-tree, but it’s the reproductive type of act) then why . . . should it be restricted to the married? Restricted, that is, to partners bound in a formal, legal, union whose fundamental purpose is the bringing up of children?In fact, “if that is not its fundamental purpose, there is no reason why . . . ‘marriage’ should have to be between people of opposite sexes.”
There is no need to rehearse her entire argument, which the reader may do for himself. But Anscombe was quick to recognize what too many marriage supporters are still reluctant to admit, namely, that “if contraceptive intercourse is all right, then so are all forms of sexual activity.” For contraceptive intercourse eliminates in principle the bond between the unitive and the reproductive, and with it any solid reason for confining sexual intimacy to the marital act.
Broadly put, to embrace contraception is also to embrace the utilitarianism that governs the Benthamite approach to sex. That approach sets aside the question of the intrinsic nature of an act, and of its ordering by the human agent to its proper ends, in order to concentrate solely on its capacity to maximize pleasure or happiness. But in doing so, it makes it impossible to distinguish morally between contraceptive and non-contraceptive intercourse, or between intercourse and other kinds of sexual activity, including sodomy, in a way that can sustain marriage as an institution that supports the natural family and is therefore of permanent public interest.
Recovering Our Nerve
Now, some shudder at the very mention of this subject, and want nothing to do with it, especially in public debate, but that is tantamount to refusing to use live ammunition on the battlefield. If the contraceptive mentality is not to be challenged, la lutte must be declared “no contest.” For it is precisely the contraceptive mentality that dismantles—gradually at first, then, when the marital core is reached, with great rapidity—the whole nexus of attitudes and practices and policies informing the laws that have governed sexual behavior in the West.
Moreover, and more seriously, it is the contraceptive mentality that revives, as Anscombe also observed, the ancient “appetite for killing children,” whether the killing takes place in the bloody confines of a run-down abortion clinic or in the sanitized laboratories of the medical research establishment. The same-sex marriage issue and the abortion issue are joined hip and groin by contraception, and cannot be separated.
The path to Yogyakarta, in other words, like the path to Roe and to the burgeoning abortion industry, was already sign-posted by the placards protesting Humanae Vitae. At that pivotal moment, the faint-heartedness of Christians, especially of nominally Catholic Christians—who, according to a recent American poll, are today more in favor of same-sex marriage than is the general public—unleashed the tide that now threatens to wipe away the remaining outlines of Judeo-Christian civilization.
Without a recovery of nerve, and a new willingness to deal with the problem at its root, there is indeed little point in fighting the same-sex marriage battle, and almost no hope of victory. The fabric of marriage cannot withstand the acid of contraception.
Christians’ Particular Duty
Christians are not the only ones in a position to understand what Augustine and Leo XIII and Paul VI understood—that marriage resides at the very foundation of culture. They are not the only ones who have reason to be concerned about the bastardization of the citizenry through same-sex marriage, or about the Kulturkampf that threatens to leave behind it a moral wasteland blanketed by impenetrable judicial thickets. They are not the only ones capable of standing for freedom. Christians may, however, be the only ones capable of standing against contraception, which is their particular duty.
In my country we failed at that duty, and our leaders by and large failed with us. Within weeks of the promulgation of Humane Vitae, even the Catholic bishops were conceding, in their notorious Winnipeg Statement, that persons who “have tried sincerely but without success to pursue a line of conduct in keeping with the given directives . . . may be safely assured that, whoever honestly chooses that course which seems right to him does so in good conscience.” It took less than forty years for same-sex marriage to arrive in Canada, and not much longer to establish official policies and curricula promoting the sexualization of our children and depriving us of the power to intervene.
America, I fear, will experience no different fate unless its Christians are emboldened to attest, not merely as the Manhattan Declaration attests but also, and more especially, as Anscombe attested, both that marriage is a gift—something we receive with creation, not something we invent—and that “only what is capable of being a marriage act is natural sex.” Anscombe knew as well as anyone that this was “against the grain of the world, against the current of our time.” But she did not hesitate to remind Christians either of “the colossal strain” that has always existed between pagan morality and Christian morality, or of the far greater quarrel that exists with the “post-Christian morality that has sprung up as a result of contraception.”
A Clear Mirror for Society
Of the latter we scarcely need any more reminders, since we are constantly surrounded by them. Perhaps we still need to recall, however, how Christianity once revolutionized the pagan world—how, for example, it raised the stakes in marriage, not only by insisting on monogamy with all its benefits for women and children, but also by sacramentalizing it: declaring an institution belonging to the natural law open to divine grace in such a way as to found the “domestic church,” the secular image of an eschatological reality. These were monumental achievements, true revolutions at once spiritual and political, that turned marriage into a prize worth fighting for by connecting it both to what humans are and to what they may hope to be.
Christians, of all people, should not be surprised or cowed by those who are now seeking to seize the prize through political and juridical maneuvers. They should understand, however, the seriousness of the situation. For our society can never really be post-Christian. It can only lapse into a sub-pagan parody of its Christian heritage, which is just what we are witnessing with same-sex marriage.
Though our society now applauds almost any kind of “loving” union, it admits no sacramentum but sexual self-expression. Though it professes the highest respect for women, it no longer requires or expects fides from either men or women. Though it preaches progress, it is uncommitted even to proles—that is, to its own secular future. It prattles about children’s rights, but denies them even the right to life. It is a society that no longer knows what love is, and that no longer believes that humans may hope for very much.
Perhaps only Christians can present this society with the kind of mirror in which it can truly see itself for what it is. But a mirror clouded by the contraceptive mentality is no use at all. To offer it such a mirror is a decidedly un-serious gesture—a parody of a parody. So it seems that, for Christians at least, the fight against same-sex marriage will have to begin at home.
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