Peter Leithart has kindly responded to my earlier post on the subject of natural law arguments in the same-sex marriage debate. This is a discussion with far broader implications than the current question of same-sex marriage, so I thought that it would be worthwhile to articulate the nature and ground of natural law arguments in more detail. The Calvinist International have kindly hosted a piece in which I address some of the issues raised by Dr Leithart’s position and the debate more generally.
‘Creational order’ is indeed a theological notion, but what it names is a shared reality: it is this reality that lies at the heart of the case that I present. As it is a fact, not an argument, this reality isn’t up for vote or debate. As the ‘creational order’ of which I speak is an order that is present and operative within us as persons and societies and not solely outside of us, it will naturally tend to produce consistent patterns of behaviour. That a dyadic male-female form is a constant feature of marriage in societies throughout history and across cultures – even polygamous ones, which merely allow for men to enter into many such pairings – is a product of this reality, not a conclusion that was reached at the end of a debate or line of reasoning.
As natural law can operate perfectly well without the interventions of our understanding, a case founded upon it is not congruent in form to those of same-sex marriage proponents, for whom constructivist presuppositions prevail and, in most respects, arguments must stand on their own. The persuasive character of the established practice of marriage does not depend primarily upon our arguments but, as natural law is experienced as a proprioceptive conatus (to borrow one of Peter Escalante’s felicitous expressions), arises principally from an instinctive apprehension of the natural order of things, of the ‘grain of the universe’ as we move with it. The appeal to a unified marriage tradition is more than just an appeal to tradition as such, but serves as a testimony to this creational order.
Consequently, we are not thrown back upon ‘imaginations formed by Scripture’. That our culture has been rendered dizzy from sitting too long on the merry-go-round of the sexual revolution does not mean that our disoriented reeling is the natural human condition, or to be remedied solely by appeal to Scripture. If we would just step off for a moment and recollect our senses, we might discover otherwise.
Read the entire article here.
Alastair's Adversaria 
Alastair,
Have you by chance read the new book “What Is Marriage” co-authored with Robert George? While its philosophical jumping-off point is different, it makes a similar case to the one I think you’re putting forward. (It’s a ver yquick read–I finished it in under a day.)
No, I haven’t, but I have read the article that the authors of that book originally wrote. I wrote a lengthy piece on the subject a while back now and made reference to their argument at a few key points.
Hi Alastair , i saw this video on youtube , that reminded me of you. And in a way it relates to what you have been saying: http://youtu.be/SCNIBV87wV4
You understand me well, Paul! 🙂 I actually posted a version of that video a year or so ago, with a perceptive Milbank quotation.
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I’m coming to this discussion a bit late, although I’ve found it very interesting. I would say that Leithart is correct in that the arguments Christians have at their disposal will not satisfy secularists. Generally speaking, opponents of homosexual marriage face an uphill battle against the tide of public opinion that is less inclined to listen, but an appeal to actual data is vital if the church wishes to carry any weight in the public sphere. Sadly there has been very little substance to the arguments to convince people of the chilling effects that could come from a change in the law.
One of the problems that I can see is that Christians have been too quick to articulate their opposition to homosexual marriage (or homosexuality in general) in terms of their religious right to oppose it (placing their right to express their views over other people’s right to self-determination), fairly vague and unsubstantiated concerns about the effects that it will have on society and arguments from the Bible, which are basically meaningless to anyone who does not accept its authority and inadmissible to a government that does not see the Bible as its foundation. Given this overreaching on the part of Christians, it is not surprising that there is a rejection of the arguments by society and a corresponding weakening of the church’s power when it comes to controlling its own affairs on the issue. What’s more, this causes a backlash to even the most nuanced arguments, as they are seen to be little more than an apologetic for a bigoted view (this is how I feel it is seen, rather than how I see it).
When you speak of natural law arguments in terms of general tendencies, this doesn’t actually harm the argument for homosexual relationships as part of this natural law. No proponents of homosexual rights claim that any more than a minority of the population is homosexual, so the natural order and constant feature of heterosexual relationships within different societies is unaffected. What’s more, homosexuality is well documented in many societies (throughout history and across cultures) and also in other species, so the argument that homosexuality is an abberation from the natural order or a sign of moral decay is of necessity a purely theological one. An appeal to an “instinctive apprehension of the natural order of things” is so subjective that I don’t see the need to address it. Basically, the discussion needs better arguments than it has gotten so far from the church, and meanwhile actual demonstrable damage to gay people and the church’s reputation is being done, in part thanks to this continued opposition.
Well, it looks like I’ve made another fairly emotional argument, but I hope it’s taken less as an attempt to derail the conversation than as a comment on an issue that I consider to be very important. I actually read (almost) all of your other articles on this blog, but don’t feel I have anything to add in most of them. Unfortunately the issue you mentioned earlier about Google Reader’s demise will affect those of us in China more than many, as it’s the main way for me to access blogs like this one that are normally blocked (due to it being on WordPress, not because of any specific content on the site).
Thanks for commenting, Jonathan. You raise some important issues. Here are some thoughts in response. I will try to give a thorough answer at this point, as I will have to bow out of the discussion after this: I have a busy next few days.
Most importantly, this debate is not really about the morality of homosexual practice, nor is it even about whether forms should be provided for those in homosexual relationships who desire committed relationships with each other. From your comments, I get the impression that you are presuming this. In all of my previous treatments of same-sex marriage, I haven’t presumed any agreement on these points, so whether or not people think that homosexual practice is morally permissible or should be supported or celebrated by society is completely beside the point.
As I have remarked, there are innumerable societies that have celebrated and sometimes even mandated homosexual relations, and a few that have had institutional forms for them, yet same-sex marriage truly is a novelty. And this is where the issue lies: with the nature of marriage, not of human sexuality.
The question here concerns the realities with which marriage is concerned and the ends to which it is oriented. What are these realities? Sexual dimorphism: the fact that the human race has two sexes and that the difference and relationship between the sexes is perhaps the most basic anthropological reality and that negotiating this difference and relationship is one of society’s most important tasks.
Reproductive pairing: the fact that there is something uniquely significant about sexual relationships between a man and a woman, something that makes the existence of a private sexual relationship a matter of public interest. It is from this reality that virtually every human being who has ever walked the planet has arisen and it is unsurprising that human cultures everywhere should give it a significance that it does not give to homosexual partnerships.
Parenthood: the institution of marriage serves to hold together biological (gestational and genetic), social, and legal parenthood as the ideal and norm, and to keep the need for separating these things down to a minimum. It also seeks to ensure that both halves of the human race are represented and valued in the task of raising the next generation. It seeks to ensure that children are kept in contact with their origins, origins in a secret and loving union between two persons, unmediated by public realities of economics, law, medical science, etc.
The bonds of blood and family: by building marriage around reproductive pairings, an emphasis is placed upon the strength of the broader network of family relationships, between siblings, grandparents, extended family, etc.
Marriage is not merely a form for private relationships, but also enshrines broader social values. In particular, marriage has traditionally emphasized the importance of sexual continence and the relationship between sex and procreation. It has also been something that placed expectations upon all married couples to remain faithful and made separation very difficult, as the social interest in the institution of marriage was largely concerned with children.
While the same-sex couple who decide to get married might do so for very similar reasons than any other couple, the institutional ends of marriage are not operative in their case, or are compromised in various respects. For same-sex marriage to become conceivable, a number of changes had to occur within society. Sex had to be conceptually detached from procreation and to assume a far greater profile than it, being seen primarily through the lens of normalized contraception. Reproductive technology also played a role here, making the physical union of bodies leading to conception a more dispensable reality. The family had to become a socially peripheral and primarily sentimental reality. Sexual dimorphism had to be minimized, by minimizing the roles of fatherhood and motherhood, and articulating the identities of men and women in a woman that marginalized the natural orientation of sexual difference to procreation. Marriage needed to become privatized, rooted in the desires of the married partners, rather than in broader familial and social concerns, in a way that made divorce much easier. The state and the market needed to assume the dominant role in social relations, rendering all parties individuals, marginalizing those areas of life where sexual difference comes to the fore, downplaying, controlling, or co-opting reproduction, increasingly assuming the task of raising children, and facilitating the constructivist project.
In short, the cultural foundation of same-sex marriage has been largely laid for quite some time, primarily in the creation of a contraceptive society and a society centred on state and market, in which the family and procreation are marginalized, marriage is almost exclusively seen as being about the couple getting married and their romantic attachment (justifying easier divorce), and it is seen as a private lifestyle option, rather than a social norm that all – married or unmarried – should orient their lives around.
The world is not going visibly to fall apart if same-sex marriage is legalized. We have been moving in the direction of a model centred on romantic non-procreative gender neutral marriage for quite some time. Same-sex marriage institutionalizes and sets in stone this cultural revolution. The damage that same-sex marriage causes is less about the specific damage of particular gay couples getting married than it is about the effect of the values that it is founded upon. We have been seeing the effect of these values for quite some time.
The damage is that of plummeting marriage rates as marriage is a lifestyle option, rather than a set of social norms for all. The damage is that of a high level of divorce. The damage is that of a huge number of children being born out of wedlock. The damage is that of forcing both sexes to conform to the same mould and stigmatizing those who don’t. The damage is that of the cultural devaluation of the roles of motherhood and fatherhood and the role that particular sexes play in the task of child-rearing (for same-sex marriage suggests that we can happily and healthily dispense with either). The damage is that of rendering open marriage, non-monogamy (not in the direction of polygamy, which is a red herring in these debates), and ‘monogamish’ marriage far more culturally acceptable, with all of the weakening effect that that has on marriage. The damage is that of reorienting the institution of marriage away from the interests of children to one focused on the reproductive ‘rights’ of adults and their choices regarding children. The damage is that of increasingly treating sex as a ‘casual’ reality, of limited consequence (which is what tends to happen when it is detached from procreation). The damage is that of the state and the market increasingly dominating the horizons of our social existence: it takes a lot of state activity to suppress some of the natural realities that marriage has been oriented around. The damage is that of a loss of a future orientation in society. The damage is that of a society founded upon the shifting sands of emotional attachments. The damage is that of an increasingly individualistic way of regarding the world and ourselves.
Much more could be mentioned, but I hope that you get the idea. A call for evidence or data of same-sex marriage’s specific impact isn’t easy to answer, as same-sex marriage isn’t some detached reality, but is the embodiment of many other trends that have been at work for a long time. The effect of these trends is very easy to see. Same-sex marriage institutionalizes this cultural trajectory, one whose effects have been visible for quite some time. This is why it is so strongly opposed by Christians who have also opposed the several trends that preceded it.
I quite agree that many arguments Christians have raised against same-sex marriage have been poor ones. Many have sensed that something is very wrong with the position, but have struggled to articulate why. However, it is important to recognize the degree to which the media and other parties have tried to stigmatize any opposition. The good arguments – and there are many – aren’t given much of an airing, while anything that smacks of bigotry will be very widely reported.
Natural law primarily names an underlying reality that all participate in. It is being discussed as the conceptual basis of the debate – that which renders a debate possible – not so much as the actual content of the debate itself. One doesn’t need to appeal to natural law to make the case against same-sex marriage. The article linked above operates at a ‘meta’ level, arguing why it is possible to have a debate about same-sex marriage. For instance, in speaking of an ‘instinctive apprehension of the natural order of things’, I was referring to the relationship between marriage and the issues that I mentioned above, and, once again, I was not making an argument against same-sex marriage, but merely drawing attention to one of the bases for such arguments.
One of the deepest issues here is the removal of philosophy and its traditional ethical concerns from the picture by people on both sides. The appeal to natural law is an attempt to reaffirm its place in the conversation, not just reducing all such questions to questions of divine revelation, or reductionist questions of the empirical sciences on the other. This is the belief that we can dispense with all notions of human nature and the good and merely run society in terms of the findings of the natural and social sciences. The absence of searching conversation concerning such things as the ends of marriage and the good that it aims at in most quarters of the debate is very telling.
Natural law can’t be settled by the empirical sciences. When natural law speaks to issues such as murder or paedophilia, it has no problem recognizing that these practices have been widespread in human societies. Nor does it have any problem accepting the evidence that paedophilia can have a biological basis. Natural law concerns such things as the ends and good of our nature, something that both of these practices, no matter how biologically ‘natural’ they may be, undermine.
I see very good reason to believe that a homosexual orientation has some measure of a natural basis, most probably primarily at an epigenetical level (with a failure of epi-marks to erase correctly and being passed on). The actual expression of this orientation exhibits incredible cultural variation, however. Some societies don’t even have the notion of homosexual practice, which suggests at the very least that there is by no means a straightforward connection between orientation and practice, let alone the cultural articulation of that practice in specific conceptual frameworks and forms, institutional or otherwise.
None of this evidence from the social and natural empirical sciences, however, settles the questions of how homosexual practice relates to the ends and good of our human nature. It doesn’t settle the question of how that relationship compares to that which is present in sexual relations between men and women. Nor does it address the issue of the ends and good of marriage, but typically just assumes an answer to this.
The degree to which homosexual practice will be seen as congruent with natural law is largely contingent on such considerations as the importance of the connection between sex and procreation within society. Where the relationship between these two things is very weak or downplayed, homosexual practice will be regarded as more natural, or at least as a benign departure from the norm. If sexual dimorphism and procreation are regarded as matters of considerable social importance, and sex is integrally bound up with and oriented towards serving such realities, homosexual practice will tend to be at the very least frowned upon. It will definitely be viewed as a very distinct sort of thing from committed sexual relationships between men and women (it is really worth unpacking the huge assumptions behind ‘equality’ rhetoric here).
To value homosexual relations in their own right as our society does, society has to loosen the connection between sex and procreation, downplay the significance of committed sexual relationships as the means of relating the sexes, challenge any approaches that give the sort of deep anthropological and religious significance to the male-female pair as one finds in Scripture, and start to prioritize sex as primarily serving the interests of individual sexual agents desiring sexual gratification, something that tends to weaken relationships across the board. Although this set of social valuations will probably lead to those with homosexual inclinations being happier, they have much wider social implications, which can often be considerably less pleasant in their apparent effects.
The problem is that few people in these debates are really attentive to the wider social tendencies and values that are bound up in the same-sex marriage debate, which means that positions like mine are habitually characterized as arising purely out of irrational prejudice and hatred. This involves a naivety about the underlying issues that shape the debate, and about the larger social trajectories that have led us to this position. As society has surrendered its reins to the natural and social sciences and has become increasingly hedonistic and individual in its character it is hard to get behind these attitudes and to adopt a more probing philosophical, hermeneutical, and anthropological perspective on developments, which really is what we need at this time.
Yes, a number of people have observed the effect that the loss of Google Reader will have upon people in countries such as China and Iran. It really is very concerning.
Do you have any thoughts on traditional same sex marriages in Africa, for instance, as in the paper: Njambi, Wairimu; O’Brien, William (Spring 2001). “Revisiting “Woman-Woman Marriage”: Notes on Gikuyu Women”. NWSA Journal 12 (1): 1–23. Retrieved 28 September 2012.
http://en.wikipedia.org/wiki/Same-sex_marriage#Terminology
From memory here, despite the same word being used, in the case of the Gikuyu, they really function rather differently as social realities and aren’t practically equated. Most I have read argue that they are just homosocial partnerships (the actual cases I have read of were non-sexual). They are for women, not same-sex attracted persons in general. They involve inheritance, support for single or widowed women in raising children, etc. It would be for a Naomi-Ruth style situation. We see similar things in regard to practices in Western history, for instance in adelphopoiesis ceremonies, where a significant overlap of language and form in certain areas definitely doesn’t entail the equation of (typically non-sexual) partnerships between persons of the same-sex and marriage at all.
Even were such cases to exist – and having examined several claims, I have yet to find one that is really persuasive – its extreme rarity would rather underline the general point being made here.
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