Guest Post: Natural Law and Marriage

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Birch Smith, Hillsdale College, 2017

After my last article, in which I argued that a clarification of terms and separation of two distinct concepts (legal and religious ideas of marriage) would eliminate much of the political controversy surrounding the issue, a number of people expressed interest in hearing more about the natural law positions regarding marriage, and what that might mean for our discourse and policy.  This piece will perhaps be a bit more convoluted, but that strikes me as necessary for a proper consideration.

Before I begin, let me state that there are infinitely better considerations of the matter in the works of thinkers like Sherif Girgis, Ryan Anderson, Robert George, etc.  This is a blog post, and as such will not be able to offer the degree of complexity and thoroughness that those books can.  Thus, if you’re really interested in the subject, you can do nothing better than to read the works of those authors, and others like them.

That said, allow me to do my best to offer a brief, and necessarily oversimplified in some degree, summary of the natural-law argument as regards marriage.  That position holds that marriage is fitting and proper for human flourishing (and thus was instituted by God) because it is essentially procreative.  The family unit – featuring a father, a mother, and children – is the essential unit of society, and it is only capable of being sustained by male-female conjugal relations.  The purpose of marriage is to unite man and woman as husband and wife, in order for them to become mother and father to their children.  Thus, according to this view, the state’s interest in marriage is the welfare of the children: that they be raised in stable, heterosexual, monogamous relationships.  This argument usually has three aspects: the biological fact that the act of reproduction requires a male and a female; the anthropological belief that men and women are distinct and complimentary; and the sociological finding that children with a mother and father flourish more than children in any other family situation.

I tend to be deeply sympathetic with such natural law arguments, and I do believe that monogamous heterosexual marriages are most essentially suited to human nature.  I am, however, still cautious about arguing that this fittingness rises to a level of certainty that permits the state to take an interest.  The first, broad point to be made here is that there are plenty of things which are not exactly conducive to human flourishing – the Doritos, Mountain Dew, and video games stereotype, say – that are nevertheless perfectly legal, and ought to remain such.  Any attempt to use legal coercion to force people to pursue their own flourishing is inherently dangerous for any of the following reasons: the coercive agent may itself be incorrect about the nature of human flourishing, or about the nature of the act in question, and may therefore harm human flourishing; the aspect of human flourishing in question may be essentially achievable only through understanding and consent (i.e. it is appropriate to coerce people to flourish by not committing murder, but not to coerce them to flourish by professing the correct religious doctrines.); or the risk of introducing that degree of coercive power may be greater than the benefit sought.

So, with that in mind, let’s look at the issue of marriage.  The natural law account of marriage, it seems, must make the argument that coitus is not just the most important but in reality the essential form of human sexual intercourse, and that without the coital act a human sexual relationship is illegitimate.  (Note: I say ‘human sexual relationship’ because there is some disagreement between Protestants and Catholics on this issue.  Catholic teaching, inasmuch as I understand it, is so committed to the centrality of procreation in sex that every sexual act that is not capable of procreation is a matter of concern, at least.  This is the reasoning for condemning not only masturbation and pornography but also artificial contraception; as well as viewing non-coital sex acts as potentially illegitimate.  Although sex is pleasurable, its purpose is not pleasure but reproduction, and separation the pleasure from its holistic function risks alienation, isolation, and loss of love for others.  Protestants are generally more lenient of contraception, at least, and would be more likely to place importance on the general character of the relationship as procreative, not each individual instance of sexual intercourse).  Either way, relationships without the capacity for coitus are seen to be fundamentally fruitless, unable to achieve the procreative purpose of marriage.

Although this seems both simple and true, problems occur when we attempt to formulate our principle in clear language.  A usual statement is that marriage is a unification of a man and a woman for the purpose of procreation and the rearing of children.  But, what does the phrase ‘purpose of procreation’ mean?  The clearest, and simplest, definition is that those two specific individuals must be capable of, intend to engage in, and actually perform reproductive acts.  As usual, thought, simple definitions are incapable of properly accounting for the realities of life.  What about elderly couples, who are theoretically capable of engaging in coitus but whose biological conditions means that they will not be able to actually reproduce?  Or what about a paralyzed individual who, because of his paralysis, is unable to engage in coitus, although otherwise he and his wife are biologically capable of reproduction?  What about people who, for one reason or another, are infertile?

We thus find ourselves with three options: we can adhere to the strict definition, and exclude not only homosexuals but the elderly, the disabled, and infertile, etc.; we can abandon the notion that procreation is central to a proper concept of marriage, or we can attempt to find a more nuanced definition.  It seems unlikely that we would choose the first, and we do not need to choose the second until we have tried the third.

Let us suggest another definition: that marriage is a unification of man and woman, given that men and women are the sorts of beings which can procreate and raise children, in order to realize that goal as fully as possible while acknowledging the realities of living in an imperfect world.  That is, the procreative nature of the union is more perfectly understood as theoretical/universal (in that a human male and a human female are kind of beings which can engage in coitus and produce human children), rather than specific or particular (this individual human male or female may or may not, as a result of material beings not being in perfect accord with their theoretical nature, be capable of reproduction.)  This definition relies on the ancient and medieval philosophical distinction between actuality and potentiality:  heterosexual marriages, in their nature, all have the potential for reproduction, even if that potential is never actualized.  By contrast, homosexual marriage never possess the potential for reproduction: there are no possible circumstances under which two males or two females can procreate.   Once this distinction is made, the definition is functional, and I believe we can adequately say (on natural-law grounds) that homosexual relationships can never be understood to be marriage in this sense.

We are, however, a very long way from being able to assert that this has any bearing on our laws.  We of course cannot coerce heteronormativity simply on the grounds of the proper natural function of sex, at least not without deep hypocrisy.  This is because the natural law perspective on marriage and homosexuality, as it pertains to two consenting adults, is only coherent within the framework of the natural law perspective on sexuality in general.  If we reserve marriage for monogamous heterosexual relationships for natural law reasons, that is because we locate the sexual act itself within marriage, for the purpose of reproduction.  But it is clear that, at least legally, we do not locate the sexual act strictly within marriage, nor is it prudent or possible to attempt to do so.  While pre- and extra-marital sex is legal, and while no-fault divorce is legal, we have no coherent reason to expect this one particular aspect of natural law reasoning about marriage to be enforced, while the others are not

The only possible remaining reason for state involvement is the aspect of marriage that pertains, not to consenting adults, but to those their relationship affects – children.  Most specifically, of course, it has to do with adoption.  It would be theoretically justifiable, from a natural law perspective, to restrict adoption to stable, committed heterosexual couples, to ensure the child had a mother and a father.  I myself do not fully know whether I believe such a restriction to be just or good, but I will attempt to lay out a few brief points: once again, it is dangerous to legally coerce for the common good unless one is certain that their understanding is correct, and that the act of coercion itself will not lead to worse consequences.  I am, as usual, extremely hesitant to advocate a use of power which is capable of subjective interpretation and application.  I do believe that monogamous heterosexual marriages are by far the best environments for the raising of children: I also do not deny that monogamy and heterosexuality are no guarantees of fittingness to raise a child, or that there are single or homosexual parents who do, from a secular standpoint, an excellent job of parenting.  But I have a serious disagreement with playing into the game of modern identity politics, either in claiming or denying rights to identifiable interest groups.  This is because identity politics is purely about power, and it is prudent when proposing any coercion of group X to consider the possibility of that coercion being applied to you, if the majority comes to believe that your views are harmful to society.  Indeed this sort of thing is already occurring, with Christian views being increasingly labelled as hateful and dangerous.  While we are warned in the Bible that we will be hated and persecuted for our views, I do not see a need to fashion the legal rope on which to hang ourselves.  The best solution that I can suggest is to leave individual adoption agencies considerable room for attempting to discern what applicants would, in fact, make good parents.  While this solution is in no way perfect, I do believe it to be less dangerous than engaging in political power games.

The force of the natural law in this issue ought to be persuasive, not legally coercive. Click To Tweet

In conclusion, the natural law arguments about marriage are useful as a persuasive tool, and indeed are far superior to any other arguments that have been used by Christians in discourse with nonbelievers, for whom the Bible has no persuasive authority.  However, they are not sufficient to justify state involvement given the significant dangers involved.  Sexual behaviors between consenting adults are best left private, legal rights ought to be distanced from the language and concept of marriage as much as possible, and the issue of adoption, while incredibly difficult and potentially tragic, is in reality best solved by leaving qualifications up to adoption agencies with minimal legal oversight to prevent obvious abuses (adoption by violent criminals, alcoholics or drug addicts, etc.)  The force of the natural law in this issue ought to be persuasive, not legally coercive.  Persuasion, after all, is often the only true way to achieve genuine and lasting human flourishing.

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