(Part One, Part Two)
This is the third part in my series of posts on the definitional objection to same-sex marriage. The series is working off John Corvino’s contribution to the book Debating Same-sex Marriage. Corvino is an ethical philosopher working out of Wayne State University. In this book he takes on the conservative writer and defender of traditional marriage, Maggie Gallagher, in a point-counterpoint debate.
The definitional objection to same-sex marriage might be better termed the ontological objection since it focuses on what marriage essentially is. Most important from the perspective of those who would defend the argument is the notion that whatever marriage essentially is, it is essentially not a same-sex union. This conclusion is defended in a variety of ways. In part one, we discussed the Argument from Tradition, which does what you would expect. In part two, we discussed the Definitional Argument, which looks at the normative weight of definitions. Both were found to be flawed.
One of the conclusions we reached in part two was that, despite some countervailing considerations, the labels which we apply to states of affairs do not normally carry much normative weight. Thus, it is difficult for a purely definitional argument to force the conclusion that same-sex marriage is impermissible. To reach that kind of conclusion one must look into the actual states of affairs themselves and determine whether they are intrinsically or instrumentally valuable, and then work back to the conclusion that the definitional label we apply to those states of affairs ought not to be expanded to cover structurally distinct states of affairs.
The argument we’re going to look at today — the New Natural Law Argument — tries to follow that pattern. It offers an account of the ontology of marriage; it attaches special normative significance to that ontology; and it then uses this to exclude the possibility (and permissibility) of same-sex “marriage”.
1. The Conjugal View of Marriage
Under the old natural law, normative value was attached to natural function (note: I’m not entirely sure that this is correct, I suspect Aquinas apologists will tell me he had a more nuanced view). Accordingly, if the natural function of X was to do Y, then any activity that frustrated or impeded X in doing Y was prima facie wrong. This kind of principle could easily be used as the basis for an argument opposing same-sex marriage, indeed it could be used to oppose same-sex relations of any kind. I have covered the problems associated with such arguments before.
New natural law — the moral theory associated with the likes of John Finnis and Robert P. George — takes a slightly different view of things. According to this view, there is a set of basic human goods, the promotion and honouring of which is prima facie good. These basic goods are plural, irreducible and self-evident. To give an example, Finnis claims that knowledge is a basic self-evident good. Why is it self-evidently good? Because it would be perverse, inconsistent and self-defeating to deny its goodness: someone who claimed that it was bad to know P would have to know P in the first place before they could deny its goodness. Following similar though slightly less persuasive reasoning, Finnis identifies a list of other basic goods including friendship, play, life and religion (understood in the secularised sense of “asking the big questions about life, the universe and everything”).
Tellingly, Finnis has recently added a new basic good to his list: the marital good. The marital good is again basic, irreducible and self-evident. It is achieved through a particular kind of comprehensive union between a male and a female. Corvino does a pretty good job of summarising this view so I’ll hand things over to him:
As a comprehensive union, marriage unites the partners along multiple levels, which reinforce each other. On the mental/volitional level, it requires a loving, permanent, exclusive commitment between the spouses. On the physical level, it requires that the spouses unite biologically in reproductive-type acts. In such acts the male and the female become “literally, not metaphorically, one organism.” [Footnote omitted] (pg. 35)
This comprehensive-union view is sometimes referred to by proponents as the “Conjugal View” of marriage. And although there is often talk of achieving multi-level union between the partners, it is clear that (ongoing) engagement in reproductive-type acts is the essential characteristic of this type of union. After all, it would be possible for a same-sex couple to commit to one another on the mental/volitional level. Likewise, it would be possible for them to engage in sexual acts that allow them to achieve some form of bodily union. It is merely the fact that they cannot engage in reproductive-type acts that excludes them from the category of marriage. Furthermore, it is these acts that make marriage the basic good that it is: without them other types of good might be achieved (e.g. friendship, play), but they will not be the marital good.
That gives us the following argument against same-sex marriage:
- (1) The marital union is a basic good: it is a comprehensive multi-level union between a man and a woman, involving ongoing reproductive type acts.
- (2) Unions between same-sex couples cannot involve ongoing reproductive type acts.
- (3) Therefore, unions between same-sex couples cannot be marital.
Now this argument doesn’t claim that same-sex relations are impermissible, or that they cannot be accorded some kind of legal and social recognition — additional argumentation would be needed for that — rather, this argument claims that same-sex unions should not be afforded the same type of legal and social recognition as marital ones.
2. The Sterility Objection
The standard objection to the New Natural Law Argument is the sterility objection. I like to look on this as a challenge to the supposed basicality and goodness of the conjugal view of marriage (though not necessarily to the idea of a marital good). It works off a counterexample which runs follows: imagine a sterile heterosexual couple (i.e. a couple whose sexual acts cannot result in conception). Clearly, such a couple cannot engage in reproductive-type acts. But sterile couples can be married. So the conjugal view of marriage must be wrong.
To put this more formally:
- (4) According to the conjugal view, if a couple cannot engage in reproductive type acts, they cannot be married.
- (5) Sterile couples cannot engage in reproductive-type acts.
- (6) Therefore, according to the conjugal view, sterile couples cannot get married.
- (7) But sterile couples can get married.
- (8) Therefore, the conjugal view must be wrong: reproductive-type acts are not essential to marriage.
For some reason, I always think the plausible response to this argument — for the proponent of the natural law view — is just to bite the bullet and accept that sterile couples cannot be “married”. The reason I think this is plausible is that it seems to comport well with the views of some natural lawyers — particularly Finnis — who object to other non-reproductive sexual acts like masturbation, oral sex, anal sex and so forth. But for some reason they tend not to take this view. Obviously, they find the suggestion that sterile couples cannot get married to be far too objectionable.
So how do they respond? Well, the preference seems to be to challenge premise (5) by arguing that, contrary to what we might first think, sterile couples can indeed engage in reproductive type acts. The use of the term “type” is key here. Using cutesy analogies — such as: it’s still baseball even if you don’t win — such respondents will point out that a particular act token can fall within the boundaries of a general act type, even if that particular token does not realise or fulfil the end usually associated with that act type.
Corvino quotes the following example of this response from the work of Girgis, George and Anderson:
When Einstein and Bohr discussed a physics problem, they coordinated intellectually for an intellectual good, truth. And the intellectual union they enjoyed was real, whether or not its ultimate target (in this case, a theoretical solution) was reached — assuming, as we safely can, that both Einstein and Bohr were honestly seeking truth… …by extension, bodily union involves mutual coordination toward a bodily good — which is realized only through coitus. And this union occurs even when conception, the bodily good toward which sexual intercourse as a biological function is oriented, does not occur.
We can formalise the reasoning here as an argument from analogy, which directly attacks premise (5):
- (9) Two scientists coordinating intellectually so as to obtain the truth can successfully engage in the act-type “pursuing truth” even if the truth is not ultimately attained.
- (10) The case of a sterile couple coordinating their bodies so as to achieve sexual union is similar to that of the two scientists in all important respects.
- (11) Therefore, a sterile couple can engage in reproductive type acts, even if reproduction is not ultimately attained.
The problem with this formalisation is that it’s a fudge. One has to paper over many important differences between the two scenarios to make it sound even vaguely persuasive. As Corvino points out, it may be true that Einstein and Bohr are effectively engaging in the act type “pursuing truth” (i.e. they are coordinating on an intellectual good) even if truth is not obtained, but that’s only because they are honestly intending to seek a goal that simply does not occur. Perhaps it does not occur because of their cognitive limitations, or because others have conspired against them. Whatever the reason, it is their honest pursuit of it that allows us to say they actually engaged in that act type. But this throws into immediate relief some significant differences in the case of the sterile couple. If the couple know that they are sterile — e.g. if the woman has had her uterus removed due to cancer — then there’s no way that they can honestly pursue the goal of reproduction. And so it would seem to follow that they cannot perform reproductive type acts.
To put this formally (structured as a defence of (5))
- (12) If an act type T is characterised by activity that is oriented towards some end E, then a person can only be said to engage in T if they engage in activities that can result in E, and they knowingly and honestly intend to attain E.
- (13) The reproductive act is characterised by coordinated bodily activity between two persons that is oriented toward conception.
- (14) A sterile couple cannot knowingly and honestly intend to conceive.
- (5) Therefore, a sterile couple cannot engage in reproductive type acts.
The principle motivating this argument (premise (12)) is somewhat ad hoc, drafted as it was purely in light of Corvino’s reaction to the analogy proffered by Girgis, George and Anderson. But it seems reasonable enough. To say that mental states like knowledge and honesty can be part of the success conditions for the performance of certain act types seems normal enough.
3. The Paraplegic Case
Proponents of conjugal view might respond by rejecting the honest and knowing success conditions. In other words, they could argue that an act is of the reproductive type as long as: (a) there is uncontracepted sexual intercourse (with ejaculation maybe being necessary); and (b) irrespective of the intentions and knowledge of the parties engaging in the act. Furthermore, they could argue that this is enough to make the act intrinsically morally valuable.
This, however, seems absurd to me: the mental states of the parties are clearly relevant to determining the moral status of the sexual act. What if the act was non-consensual? Surely then it would be prima facie wrong? Indeed, even proponents of the conjugal view recognise something like this point when they identify mental/volitional union as being part and parcel of marital unions.
But even if they could overcome this problem, unpalatable consequences would follow. As Corvino points out, proponents of the view would then have to accept that certain paraplegics could not marry. Unlike sterile persons, paraplegics who lack the use of their reproductive organs, cannot even engage in reproductive type acts. Thus, they cannot satisfy the essential condition of the conjugal view. But surely it is absurd to deny that they cannot be allowed to marry, or that their marriages should no longer be legally recognised? So thinks Corvino at any rate.
Although Corvino thinks that proponents of the conjugal view are logically forced to this conclusion, he thinks they will try to avoid it. In particular, he suggests that they might appeal to the value of privacy or autonomy in rejecting state interference in paraplegic “marriages”. But if they did so it would be a spectacular concession. Proponents of same-sex marriage could use similar reasoning to support non-interference in same-sex “marriages”.
Thus ends Corvino’s basic critique of the New Natural Law Argument. There are other reasons for rejecting, ones that Corvino discusses elsewhere and that I have covered before, and also ones that other philosophers have raised. But we’ll leave it there for now.
Okay, that brings us to the end of this series. To sum up, the definitional objection to same-sex marriage holds that same-sex marriage is, in effect, an oxymoron because it contradicts the essence of marriage. Three forms of the definitional objection have been considered here: the Argument from Tradition (AFT), the Definitional Argument (DA), and the New Natural Law Argument (NNLA).
The AFT was deemed to be flawed because it assigned unwarranted normative weight to traditional institutions, even in its most sophisticated Hayekian form. The DA was deemed to be flawed because it assigned unwarranted normative weight to the labels we assign to certain states of affairs. And the NNLA was deemed to be flawed because it assigned unwarranted normative weight to reproductive type acts.