A Natural Law Critique of Same-Sex Marriage

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A Natural Law critique of Same-Sex Marriage








Benjamin Williamson
PHIL 350: Ethics
March 30, 2016









In this paper I will argue from a Natural Law Metaethic by offering three objections to certain underlying notions that are foundational to arguments for same-sex marriage. Even though a natural law metaethical approach is the primary Metaethic being utilized, that does not necessarily mean that other metaethical approaches are not in view. For example, a deontologist could talk about the duties parents have to their offspring in virtue of their biological and uniquely social relation and that same-sex marriage diminishes certain duties parents have to their children by granting special credence to adult desires than each child's needs. Similarly, a utilitarian could argue that the overall net cost of permitting same sex marriage greatly exceeds the net benefit it would bestow on the average number of citizens in the United States. Or if one wished to advocate a divine command theory, one would argue that same sex marriage violates God's design for marriage and hence disobeys divine commands. Finally, as a natural law theorist, I would discuss how human nature in reference to gender and sexuality, the common good, and human purposes shed incredible light on how marriage should be construed. As it will be anticipated, there will be numerous metaphysical assumptions that will be illuminated and briefly defended.
I will argue that same-sex marriage entails a constructionist position on gender, sex, and the family, a constructionist view of human telos, and undermines marriage equality by its own principles. Natural law theory, by contrast, affirms the following views as true: an essentialist view of gender, sex and the family, an Aristotelian-Thomistic conception of human telos, and that marital rights are ultimately grounded in the teleological function of human nature, not mere human desires or consent. Finally, I will target the fundamental metaphysical issues that lurk behind certain arguments for same-sex marriage, attempt to show they result in certain absurdities and represent an inferior model of marriage than the traditional view.
Same-Sex Marriage entails social constructionism on gender and sex
Social constructionism – hereafter SC - essentially argues that certain properties like gender, sex, gender roles, etc. are not rooted in human nature but are fluid and differ cross-culturally. As William S. Wilkerson in his essay Social Constructionism and Essentialism explains, "Social constructionists argue that human sexuality changes with changing cultural and social circumstances, so that the gay and lesbian identity and sexual orientation familiar to our current time and location cannot be found in other times and places." Essentially, one's sexual identity and orientation are constructed by the culture and society one lives in. This seems to be a form of social conventionalism. Wilkerson also claims that it is impossible for three different sexual orientations to exist without being affected by human interpretation.
Human interpretation plays an essential role for creating the particular orientation in question. Moreover, desires – or one's orientation – are never epistemically and contextually separated from the identity formed by the individual. It could not be the case, according to Wilkerson, that the same sexual desire in two different people would lead to different identities because interpretation determines which desire is manifesting the identity it eventually expresses. Wilkerson thus concludes, " There cannot be such a singular desire, the constructionist claims, because the social context in which an individual lives provides the cues for interpreting a desire that is not fully formed until it has been interpreted, and so the cultural factors around an individual do not merely channel the expression of desire, they partially construct the desire."
There are at least two problems with Wilkerson's analysis of gender and sex. First, it seems to face the same problems as ethical relativism, the view there are no universal or objective moral principles or norms that transcend cultures. Rather moral principles and norms are constructed by either individuals – subjectivism – or society – conventionalism. The problem is that it employs what philosopher Louis Pojman calls the Diversity Thesis. Since moral practices are incredibly diverse throughout numerous cultures around the world, this seems to show that morality is not a universal phenomenon or one that transcends each culture. Just like moral relativism does not follow from the diversity thesis, the social constructionist view does not follow from the diversity thesis. The mere fact that different people in different societies may express different sexual identities does nothing to show that sexual identity is constructed.
Moreover, one has to accept an absurdity if one is to accept the SC's thesis. Since the logic between the SC and the moral relativist is identical and if accepting moral relativism leads to both rational and moral absurdities, then one has to abandon SC or modify it in light of certain objections brought against it. It also would require that one accept moral relativism, which would undermine our universal sense of justice. Events like the Holocaust, sexual trafficking in Thailand and other countries, lynching of African-Americans during the Civil Rights movement, etc. could not be objectively wrong since apparently it was practiced by some societies and not by others. If this violates our deepest intuitions, then we ought to reject SC.
Same-Sex Marriage entails social constructionism on human telos and sexuality
Natural law thinkers such as Aristotle and Aquinas believed that certain facts about human nature concerning our telos had moral implications regarding the sort of lives we ought to live and the sort of beings we ought to be. However, one who defends the permissibility of homosexual will tenaciously argue that consensual acts are sufficient to ground moral permissibility and since homosexual acts can in fact be consensual acts, they are morally permissible. In his article Homosexuality and Morality, Gary Jaeger outlines John Corvino's – defender of homosexuality and same-sex marriage - five steps in characterizing the objections raised by critics of homosexuality, "it is statistically abnormal, it is not practiced by other animals, it does not proceed from innate desire, it violates the principal purpose of sex and our sexual organs, and it is disgusting or repulsive." For space constraints I will only focus on the third objection and Jaeger's handling of that objection.
Jaeger rejects the allegation that homosexual activity violates the intrinsic purposes of our sex organs for four reasons. First, he claims that "the vast majority of sexual acts do not end in reproduction and that some of us are 'made' in such a way that we are incapable of reproducing." This charge is flawed on at least two counts. First, Jaeger conflates a de facto state of affairs with a de jure state of affairs. The natural law theorist is not claiming that all marital acts lead to intercourse but rather that procreation and intercourse are teleologically linked together. So it is guilty of a strawman. Second, it simply begs the question. The issue being discussed is whether sex organs have a teleological or designed function. To cite factual differences among various people does nothing to answer the question and just assumes that there is no overarching teleological function governing human sexual powers. If I wanted to know whether acquiring knowledge and possessing an intellect are intrinsically linked or linked by design of human nature, I would not confine myself to comparing and contrasting various groups of people who have or lack knowledge in varying degrees. The fact some people do not learn much does nothing to refute the truth that acquiring knowledge has an intrinsic aspect of having a human mind.
Similarly, Ásta Sveinsdóttir in The Social Construction of Human Kinds argues that having "sex assignment" or having certain genitalia does not explain why one could have a child and thus is a construct. He claims, "… Some people whose sex assignment is in no way in dispute cannot bear or seed children." And that it primarily explains "the distribution of various social resources, privileges, and burdens…". The claim is that since not all have the ability to bear children, possessing sexual organs is a nonfactor in explaining why one does in fact have children. This confuses ultimate/basic/intrinsic capacities with immediate-exercisable/directly realizable capacities. An American child, Beth, has the innate capacity to speak English because she is American and has a human nature whose ultimate good and flourishing includes speaking a language. But suppose Beth becomes mute and deaf because of birth defects, has she lost her capacity to speak English? Yes and no. Yes in that she cannot realize her capacity to speak it because of a malfunction or defect she suffered; however she will never lose her ultimate or basic capacity to speak it because that kind of capacity depends on the kind of thing she is.
Second, Jaeger thinks that as long as certain sexual acts illuminate communication and expression between two individuals, they are at least morally permissible if not morally good . Lastly, he seems to give the impression that metaphysics either comes after constructing one's ethical system, has little to do with ethics, or is entirely irrelevant. Even though most of us would probably sympathize with Jaeger's claim that communication or expression is part of one's sexual relationship – presumably with one's wife or husband – it seems doubtful whether that is sufficient to ground its permissibility. To communicate with another person requires that both share a common language. If the claim is that two men can engage in sexual penetration with each other because it is part of their mutual communication or discourse, then on what grounds would one condemn other sexual acts that seem to fall in line with their respective lines of communication (bestiality and incest)? If communication is sufficient, then it seems difficult to see why one can legitimately discriminate between various forms of communication as long as both parties consented to the communicative norms. Could this not entail that expanding the members of that shared communicative narrative is not only legitimate but perhaps ethically required in the case of polyamorous relationships?
Second, he claims that we need to answer why it is morally wrong to use something apart from its designed purpose before giving any naturally based or teleological based analysis of human function. This seems to suggest that metaphysics either takes a backseat to ethics or isn't logically prior to ethics. Even on the most charitable reading, this does not seem right. We seem to discriminate between various kinds of actions on certain objects as morally wrong or permissible depending on the nature of the objects in question (stomping one's foot on a rock vs. a child or puppy). This very intuition is doing the work in debates on abortion, infanticide, and embryonic stem cell research and cloning. What you are by nature determines what we may do to you.
Same-Sex Marriage undermines marriage equality by its own principles
Ryan T. Anderson, a conservative marriage advocate, documents in his recent book Truth Overruled: The Future of Marriage and Religious Freedom how eliminating monogamy and sexual complementarity – a man and woman who unify together in a sexually comprehensive way through the marital act - in principle entails the permissibility of multiple person relationships. These multiple person relationships – polyamory – have coined a new term "throuple" and one particular group is described in the following way: "Their throuplehood is more or less a permanent domestic arrangement. The three men work together, raise dogs together, sleep together, miss one another, collect art together, travel together, bring each other glasses of water, and, in general, exemplify a modern, adult relationship. Except that there are three of them." Anderson claims, rightly in my view, that in changing the concept of marriage from "one man and the one woman who unite in the comprehensive act that produces a child" to a consent based adult relationship logically rules out any arbitrary reason to not extend "marriage equality" to groups of three or more.
Conclusion
I argued in this paper that same-sex marriage entails a constructionist position on gender, sex, and the family, a constructionist view of human telos, and undermines marriage equality by its own principles. By contrast, Natural law theory, affirms that gender, sex and the family are not socially constructed but are grounded in human nature, an Aristotelian-Thomistic conception of human telos, and that marital rights are ultimately grounded in the teleological function of human nature, not mere human desires or consent.
In conclusion, there seem to be a few issues that are relevant for reflection. First is the idea of subjectivism in sexual ethics and philosophy of human nature. There seems to be a widespread tendency to take the objective worth of a particular act out of the act itself and the designed function of the agent and place it in the subjective consciousness of the person who acts. It does not seem to matter much whether one ought to engage in certain actions based on his or her function but whether it will enable her to express herself freely as she pleases. This seems to take place in art as well. One's personal expression becomes the litmus test for permissibility and since some people's expressions might differ from others, there is no objectively right or wrong expression. How else could industries like pornography be permitted to be legal and in some cases described as a form of art? Lastly, one can do justice to the subject experiences of each individual in full respect without succumbing to a relativistic interpretation of ethics. This seems to be a requirement imposed by some people. In conversations with people who either do or do not share our convictions about the nature of marriage and human nature/telos, it is important to recognize the fundamental disagreements and avoid irrelevant issues that bring out our unity rather than dissension.

Bibliography
Anderson, Ryan T. Truth Overruled: The Future of Marriage and Religious Freedom (Regnery Publishing 2015.)
Robert P. George, Ryan T. Anderson and Sherif Girgis, What is Marriage?: Man and Woman: A Defense (Encounter Books 1st Edition 2012.)
Porter, Jean. A Thomistic Theory of the Natural Law: Nature as Reason. (William B. Eerdmans Publishing Company, Grand Rapids, Michigan/ Cambridge, UK. 2005)
Patrick Lee and Robert P. George, Body-Self Dualism in Contemporary Ethics and Politics (Cambridge, New York: Cambridge University Press, 2008)
Halwani, Raja, Gary Jaeger, and James S (& others) Stramel. "What Is Gay and Lesbian Philosophy?." Metaphilosophy 39, no. 4-5 (October 1, 2008): 433-471. Philosophers Index with Full Text, EBSCOhost (accessed February 29, 2016).
Sveinsdóttir, Ásta. "The Social Construction of Human Kinds." Hypatia: A Journal Of Feminist Philosophy 28, no. 4 (September 1, 2013): 716-732. Philosophers Index with Full Text, EBSCOhost (accessed February 29, 2016).






William S. Wilkerson, Social Constructionism and Essentialism. In "What Is Gay and Lesbian Philosophy?." Metaphilosophy 39, no. 4-5 (October 1, 2008): 449. Philosophers Index with Full Text, EBSCOhost (accessed February 29, 2016)
Ibid.
Ibid.
Gary Jaeger, Homosexuality and Morality. In "What Is Gay and Lesbian Philosophy?." Metaphilosophy 39, no. 4-5 (October 1, 2008): 435. Philosophers Index with Full Text, EBSCOhost (accessed February 29, 2016)
Gary Jaeger, Homosexuality and Morality. In "What Is Gay and Lesbian Philosophy?." Metaphilosophy 39, no. 4-5 (October 1, 2008): 436. Philosophers Index with Full Text, EBSCOhost (accessed February 29, 2016)
Sveinsdóttir, Ásta. "The Social Construction of Human Kinds." Hypatia: A Journal Of Feminist Philosophy 28, no. 4 (September 1, 2013): 727. Philosophers Index with Full Text, EBSCOhost (accessed February 29, 2016)
Gary Jaeger, Homosexuality and Morality. In "What Is Gay and Lesbian Philosophy?." Metaphilosophy 39, no. 4-5 (October 1, 2008): 437. Philosophers Index with Full Text, EBSCOhost (accessed February 29, 2016)
Ibid.
Ibid.
Anderson, Ryan T. Truth Overruled: The Future of Marriage and Religious Freedom (Regnery Publishing 2015.) 46.
Ibid.
1
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