Same Sex Marriage and the Natural Law



On April 17, 2013, New Zealand’s parliament passed, by a wide margin, a bill legalizing gay marriage. After the vote, observers in the public gallery along with some of the legis-lators sang a traditional Maori love song, and then followed several speeches praising the bill’s passage, each ending in a standing ovation.  In one of them, the  bill’s sponsor, Louisa Wall, summed up in a single sentence the emerging contemporary understanding of marriage: "In our society, the meaning of marriage is universal—it's a declaration of love and commitment to a special person."  Trends in public opinion show that such a scene will inevitably be repeated in the U.S. and very likely the rest of the Western World , driven precisely by sentiments like Ms. Wall’s.

There is a simple logic behind the surge in support for gay marriage. First, there is the meaning that has come to be widely attributed to the word marriage: “a declaration of love and commitment to a special person” with the state’s acknowledgement. And the state not only recognizes the union, but bestows on it a number of privileges like tax breaks, the right of inheritance, the extension of health insurance coverage, and so on. So, on one side, you have heterosexuals, who have the right to enter into this publicly-recognized relationship that brings with it all sorts of benefits. Then you have this other group, homosexuals, who are denied that right. And on what basis? Simply because they’re gay. That seems like naked injustice, not to mention a straightforward violation of the Equal Protection Clause. All that’s left to make the case is to assimilate the whole thing to the Civil Rights Movement, the parallels to which seem obvious. After all, wouldn’t a ban on same-sex marriage be the same as a ban on interracial marriage? With the argument framed in these terms, how could supporters of traditional marriage not appear to be “on the wrong side of history” or even outright bigots?

There has been a lot written in defense of traditional marriage, some of it very good, but it has not entered the public consciousness as an effective counterweight to the brilliant public relations campaign of the gay rights movement. The result is that the average thoughtful citizen does not have at the forefront of his mind a simple, straightforward argument for traditional marriage like the one sketched above and, as a result, the other side is virtually guaranteed to win the debate.

Popular arguments against gay marriage are a hodge-podge (having no common spring such as fairness or equality) and frankly not terribly convincing. To consider a few of them: Many simply appeal to scripture. But obviously in a democracy founded on the separation of church and state, this won’t fly. “Marriage is for procreation”—well, says who? And what about elderly couples or the infertile? True, heterosexual marriage is the traditional norm, but so were the subjugation of women and the institution of slavery. Sociological studies of the effects of same-sex parenting on children? Well, to take just one example, a 2010 study in the journal Pediatrics  found that the children of lesbians “were rated significantly higher in social, school/academic, and total competence and significantly lower in social problems, rule-breaking, aggressive, and externalizing problem behavior than their age-matched counterparts” in heterosexual households —so forget that. It may be that there are studies showing the opposite. But then there are still other studies that cast doubt on those studies, and…et cetera, infinitum. And does anyone really think this issue will be settled by studies? Next, there’s the slippery slope argument that predicts the eventual legalization of every conceivable form of conjugal relationship, and social conservatives let their imaginations run wild here. But each type of relationship would surely be considered one by one, with some eventually being accepted (probably certain polygamist arrangements) and others rejected (such as, perhaps, near relatives). That’s not an automatic ride down the slippery slope. It is also sometimes argued that legalizing gay marriage will undermine traditional marriage, but there is no evidence of the deterioration of heterosexual unions in countries or in U.S. states where it is legal.

There are other arguments, but these are among the most popular, and they haven’t had much of an impact. Far more forceful and even decisive, I think, is the perspective of the world’s great wisdom traditions which universally regard gay marriage as an impossibility and homosexuality itself as an aberration. Such traditions represent the very best of humanity’s moral teachings, those which have endured through the ages, and it would surely be unwise to reject them in favor of the novel and faddish without very good reason. Anyone who thinks deeply about spiritual and ethical matters finds in our wisdom traditions a reliable source of insight and truth.

Now, I said “universally,” and I realize that there are instances of same-sex relationships one can point to throughout history. The Greeks, of course, had a form of institutionalized pederasty thought by some, at the time, to be a necessary part of the education of young boys; and there was also acceptance of adult homosexuality to a degree, although it was not always seen as normal throughout the Hellenistic and Roman periods, as we would expect if it was a normal form of human sexuality. We might point out, however, that one of the philosophers through whose works we understand these practices, Plato, thought the physical consummation of the relationship to be reprehensible.  And the practice of pederasty did not survive and was always surrounded by controversy, unlike the normal institution of marriage.

And although it is not widely known, the authentic religious traditions of the world really do view homosexuality as immoral. The Dalai Lama recently said, "For a Buddhist, the same sex, that is sexual misconduct."  The largest Islamic organization in the U.S., the Islamic Circle of North America, is staunchly opposed to gay marriage, calling it “a violation of God’s laws as spelled out in the Quran and the teachings of the Prophet Muhammad, peace and blessings be upon him. God Almighty states, ‘And among His signs is that He has created for you spouses from among yourselves so that you may live in tranquility with them.’”  And one is left with no doubt about the view of the Orthodox Jewish community: “The position of traditional Judaism on homosexual behavior is clear and unambiguous, terse and absolute. Homosexual behavior between males or between females is absolutely forbidden by Jewish law, beginning with the biblical imperative, alluded to numerous times in the Talmud and codified in the Shulchan Aruch. The position of Judaism on marriage is equally clear. Judaism recognizes marriage as a fundamental human institution, and affirms marriage only between a man and woman.”  The Hare Krishna movement is no less unambiguous, holding to the traditional teachings of the Bhagavad Gita. The spiritual head of the International Society for Krishna Consciousness, Hridayananda Dasa Goswami, clarified the Society’s position in a 2009 letter after some controversy: “I am writing to reaffirm that I uphold the Krishna conscious principle that sexual union is for procreation within marriage and that no spiritual leader should encourage or endorse any other form of sexual relation.”  We tend to associate Hare Krishnas with hippies, but they represent a genuine survival of an ancient creed, one which is strikingly similar to Catholicism. We will look in vain for a living religion that has constantly endorsed gay marriage as a norm. Exceptions are just that: temporary anomalies in an enduring tradition.

Let us turn, then, to a detailed look at the teachings of one such wisdom tradition. According to the Western Natural Law tradition, conscience is a source of genuine moral knowledge. That knowledge is “written on the heart” (Romans 2:15) in the sense that it is simply part of the endowment of human nature. That this is so is shown by the striking agreement among all peoples in all times on the moral basics. As John M. Cooper puts it:

“The peoples of the world, however much they differ as to details of morality, hold universally, or with practical universality, to at the least the following basic precepts. Respect the Supreme Being or the benevolent beings who take his place. Do not ‘blaspheme.’ Care for your children. Malicious murder or maiming, stealing, deliberate slander or ‘black’ lying, when committed against friend or unoffending fellow clansman or tribesman, are reprehensible. Adultery proper is wrong, even though there be exceptional circumstances that permit or enjoin it and even though sexual relations among the unmarried may be viewed leniently. Incest is a heinous offense. This moral code agrees rather closely with our own Decalogue taken in a strictly literal sense.”

We all agree (or at least did all agree until relatively recent times) about the character of the moral law because it is part of who we are as human beings. Beginning with Plato and Aristotle and continuing through Thomas Aquinas and into modern times, the ground of the moral law was located in nature itself, understood as the given natures of all things (not just physical things) and their order. Just as, given the nature of a plant, certain things are good for it—like adequate water and sunlight—so too are certain things bad for it. Human beings, though far more complicated creatures, are in principle no different. It’s just that what is good for us is not merely physical but extends to the moral because we are constituted by rationality, a faculty that allows us to self-consciously discern the authentic good and choose either to pursue it or reject it. What is good for us in a moral sense has necessary reference to the natures of things in a straightforward way. Morality concerns the regulation of our desires and actions according to norms. Those norms are discerned by a consideration of the natural ends of our desires. The desire for food, for instance, has a clear purpose: to drive us to satisfy the nutritional needs of the body. We all recognize that habitually eating in an intemperate way is not purely a matter of morally-neutral physiology but has a moral dimension: If someone’s eating is out of control, and there is no totally overwhelming biological cause, then we say that such a person is a glutton. Gluttony has deleterious effects not only on the body but also on the soul. The same thing goes for the desire for drink. A glass or two of wine is good for us; more than that is damaging to us not only health-wise but spiritually, on a scale that stretches from minor incontinence all the way to the depths of human degradation. These are simple examples, but the point I want to drive home through them is that what is right or wrong here has clear reference to the natural end of the desire.

In the case of more complex desires, the same is true, of course. The desire for financial gain, for example, has a clear end that serves as a standard by which we judge character. Given the kinds of beings that we are, a certain amount of material wealth meets our legitimate needs—for food, shelter, clothing, transportation, education, leisure pursuits, financial security, and so on. If the desire grows inordinate, we have a name for this: greed. An old maxim says, “Nature is satisfied with little, but greed knows no bounds.” We easily recognize when individuals or even entire cultures have transgressed the bounds of what nature requires, and that recognition is grounded in the discernment of what constitutes “enough.” Whether simple or complex, sensual or spiritual, desire finds a principle of regulation in their natural ends as determined by the inner nature of the human being.

Morality, of course, is more than expediency. We all understand at some level not only that it’s a necessary condition for authentic happiness, but also that the moral law is binding in a way that goes beyond practical consequences. We find a clue about the reason for this in the great religious and philosophical traditions of the world, which hold that our true or ultimate good is not physical but ethical and spiritual, basically a matter of bringing our lives into harmony with the divine order. Indeed, the recognition that the natures of things are in some sense designed and have purposes is crucial as a grounding for objective moral truths, for their binding quality. As natural law theorist J. Budziszewski points out, the deliverances of conscience do not strike us as binding unless we see con-science itself as “designed to tell us truth by someone wise enough to do so” for “unless deep conscience is designed to tell us truth, there is no particular reason why it should.”  The same goes of course for the given natures of all things that figure into our under-standing the moral law. Unless we understand them as designed according to the intentions of the Divine Will, they will not carry any moral import beyond the merely expedient. What else could serve as the basis of the moral law as absolute, objective, universal, and binding? Certainly not sentiment, as some naturalists suggest, since sentiment is inconstant. Not even pure reason—divorced from the notion of a divine order—will do since it lacks the power to bind. I might make the rational judgments that stealing undermines the social order and that the consequences of getting caught are undesirable; but unless I understand the precept “Thou shalt not steal” as issuing from an omnipotent and absolutely righteous will, I am not justified in seeing it as anything but a prudential calculation of self-interest. And this is not the same as morality.

All of this bears heavily on the question of gay marriage, which is of course a moral question. For if homosexual relationships have the same moral status as heterosexual relationships, there is no good reason to forbid them. In fact, it would then be unjust to do so.

But let us consider the morality of homosexuality from the natural law perspective characterized above. As I pointed out, it is universally condemned by the world’s ethical and religious traditions, a fact that ought to give us pause. The basis of the condemnation in the tradition I am most familiar with, Catholicism, is a deep understanding of the nature and purposes of human sexuality. Even from the standpoint of simple biology, the function of sexuality is procreation, and if we take the functions of things to reflect real intention, then we will be concerned not to use sexuality in a way that violates that function. As I said above, this will make no sense unless we take the notion of intention seriously, meaning as reflective of the Divine Will. Of course, sexuality is more than procreation; the other purpose of it according to Catholic sexual ethics is union. But even union has a fundamental orientation to the giving of life. For the sexual act has the effect of binding two people together in love and affection; this bond then becomes a basis of the stable, enduring relationship that all children need for their successful upbringing. Human sexuality, then, understood as oriented essentially to procreation, is inseparably tied to the nature of marriage. One can discern an order here: Sex has the end of procreation. Children, the end of procreation, need a loving, life-long relationship between their parents for their healthy upbringing. That relationship is marriage. Marriage, therefore, arises from the nature of the human person, and if we are willing to grant the religious perspective any validity, then we will think that in discerning the nature of marriage, we are discerning a true reflection of the Divine Will.

The ends of marriage, therefore, the goods at which it aims by its nature, are procreation and the raising of children. To make marriage about something other than these ends (which are, again, inseparable) would be to defile it. But gay marriage can be about neither of these things, necessarily. It is by definition an unnatural arrangement. Indeed, the homosexual state itself is oriented toward an intrinsic evil if the nature of sexuality is any guide to the sexual ethics, which it surely is. This is the case even if homosexual acts themselves are what are evil in fact and not the state all by itself.

There are other ways to make the case. A common way is by appeal to the complementarity of the sexes. At one level, it is just obvious that men and women were meant for each other and that men and men or women and women were not. But it is possible to say much more. If sexuality is fundamentally oriented toward procreation (and I feel compelled to belabor the point: even just biologically speaking, it is), then since procreation is possible only between members of the opposite sex, sexuality necessarily involves complementarity. At least, this is true of sexuality in its natural state. Since we are beings of reason, we can turn things to perverse ends. But all that’s needed to make the case is the recognition that there is such a thing as a normal, natural expression of sexuality—just as there is in the case of other desires. And we can go further and point out that the biological reality of complementary has psychological and spiritual correlates. As human beings, we have deep-seated aspirations to create life beyond ourselves; because of this, we are drawn to our sexual opposites and find satisfaction for these aspirations only through our opposites and in partnership with them. Sexuality, then, is given healthy expression in the attainment of its true ends, becoming “two in one flesh” in the creation of new life. Without this transcendent purpose, requiring husband and wife to give themselves completely to one another and to the product of their union, sexuality turns in on itself and becomes a senseless compulsion that can and often does take over one’s life.  This is a consequence of severing sexuality from its proper ends (and applies equally well to heterosexuality outside the bounds of the natural law), and it is often through the consequences of our actions that we come to know moral truths.

If the natural ends of the desires for food, drink, or material gain serve as a basis for moral self-regulation in these areas, then surely it is no less the case for sexual morality. To stray outside the bounds established by nature (understood in a broad sense) is what Christianity calls sin, literally “missing the mark.” To bring our lives into harmony with the moral order is the good life and virtue; to live out of tune with it is misery and vice. The trouble is that seeing this in the case homosexuality and gay marriage requires the capacity for discernment. As I said above, the other side’s argument is simple and easily communicable, even if it doesn’t stand up to deep moral reflection. In a way, the natural law view is akin to spiritual teachings from other traditions, like the Buddhist doctrines of suffering or impermanence. A little reflection might show them to be true, but to the man or woman of today frenetically dashing about, hoping to somehow find true happiness in the things of this world, ancient wisdom might seem frivolous and irrelevant. But how to communicate the natural law view is another matter, though a crucially important one to the national debate over marriage.

The most important consequence for the question at hand is that same-sex marriage becomes a violation both of the nature of marriage and of human sexuality, a moral evil. And we cannot codify into law what is an objective moral evil. We might tolerate evil in certain circumstances (e.g., when the consequences of enforcing a law are worse than permitting the evil itself—think of prostitution or marijuana use), but we can under no circumstances institutionalize it. When we understand that marriage has a given essence rooted in the reality of human nature, and that this reality holds moral import, the terms of the debate change radically. This is why we cannot begin from definitions like Ms. Wall’s, for “a small error in the beginning will lead to a huge error in the end,” as Aristotle observed, and definitions are the beginning of all reasoning, including moral reasoning. It is because we are failing to understand the definition of marriage, grounded in the nature of human sexuality, that America, and an increasing number of the nations of the world, are falling into huge moral errors about gay marriage.

If we reject nature (and nature’s God) as the basis of morality, what are we left with as an alternative? Calculation of self-interest? The greatest amount of pleasure for the greatest number? Sentiment? Might? Accepting same-sex marriage would require jettisoning our religious traditions and the foundation of their moral teachings. More likely, though, morality will come to be understood as lacking a foundation, and there will follow dire consequences not only for marriage and family but for the very bond that holds society together. If so, it becomes all the more imperative to find a way to communicate the wisdom of our traditions in way that is as simple and convincing as that of the other side.


Doran G. Hunter   

Doran is a National Committee member of the American Solidarity Party

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